Conditions to Effectiveness. Section 1 of this Amendment shall become effective only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”): A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date: 1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date; 2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment; 3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and 4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”). B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company. C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States. D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request. E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request. F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Credit Agreement (Ruths Hospitality Group, Inc.), Credit Agreement (Ruths Hospitality Group, Inc.)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment and the obligations of the Incremental Term B-1 Lenders to make the Incremental Term B-1 Loans shall become effective only upon on the satisfaction of all of Amendment No. 1 Effective Date, which shall be the first Business Day on which the following conditions precedent are satisfied or waived:
(i) the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders Administrative Agent (or to its counsel) shall have received counterparts of this Amendment that, when taken together, bear the signatures of (A) Holdings, (B) the Borrower, (C) each Subsidiary Loan Party, (D) the Required Lenders and (vii) each Incremental Term B-1 Lender;
(ii) the Administrative Agent shall have received notice of Borrowing for Lenders with sufficient originally executed copies, where appropriate, for each Lenderthe Incremental Term B-1 Loans (whether in writing or by telephone) meeting the requirements of Section 2.03 of the Credit Agreement;
(iii) the Administrative Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise notedspecified:
(A) a written opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, dated counsel for the First Loan Parties (addressed to the Administrative Agent and each Existing Lender and Incremental Term B-1 Lender on the Amendment No. 1 Effective Date:
1. Copies of all amendments ), as to matters substantially similar to those covered in the Organizational Documents of Company executed corresponding opinion delivered on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2(B) the Administrative Agent shall have received a certificate of each Loan Party as of the Amendment No. Resolutions 1 Effective Date, dated the Amendment No. 1 Effective Date, substantially in the form of its Exhibit G to the Credit Agreement or such other form reasonably acceptable to the Administrative Agent with appropriate insertions, executed by any Responsible Officer of such Loan Party, and attaching the documents referred to in clause (C) below; and
(C) the Administrative Agent shall have received (i) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the Additional Specified Dividend, (b) the execution, delivery, delivery and performance of this Amendmentthe Amendment (including the reaffirmations set forth herein) (and any agreements relating thereto) to which it is a party and (c) in the case of the Borrower, the Pledge Agreement Amendment (as defined below) and the Deed extensions of Trustcredit contemplated hereunder, certified as of the First Amendment No. 1 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendment; and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
3. Signature and incumbency certificates (iv) the Borrower shall have paid to the Administrative Agent for the account of each Existing Lender that delivers to the Administrative Agent (or its officers executing this Amendmentcounsel), prior to 5:00 p.m. (New York City time) on December 4, 2012 (the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies “Delivery Time”), an executed counterpart of this Amendment and indicating its consent to the First Amendment to Pledge and Security Agreement dated as of the date hereof between Companyamendments contained herein, its Subsidiaries and Administrative Agent a fee (the “Pledge Agreement AmendmentConsent Fees”) in an amount equal to 0.125% of the sum of the aggregate outstanding principal amount of (x) Initial Term Loans and (y) the Revolving Credit Commitment (whether used or unused).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules of each Existing Lender immediately prior to the Pledge Agreementeffectiveness hereof;
(v) the fees in the amounts previously agreed in writing by the Incremental Term B-1 Arrangers to be received on the Amendment No. 1 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (including the reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, as counsel to the Incremental Term B-1 Arrangers, and (iiidue diligence expenses) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken incurred in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agentfor which invoices have been presented at least one (1) Business Day prior to the Amendment No. 1 Effective Date shall, acting on behalf upon the Borrowing of Lendersthe Incremental Term B-1 Loans, and its counsel shall have been, or will be satisfactory substantially simultaneously, paid in form and substance to full (which amounts may be offset against the proceeds of the Incremental Term B-1 Loans);
(vi) the Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received a certificate from the chief financial officer of the Borrower in the form of Exhibit H to the Credit Agreement certifying as to the Solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis after giving effect to the consummation of the transactions contemplated by the Amendment, the Borrowings of the Incremental Term B-1 Loans and the use of proceeds therefrom (including the payment of the Additional Specified Dividend);
(vii) the representations and warranties of each Loan Party set forth in the Section 6 of this Amendment shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date before and after giving effect to this Amendment No. 1 and the borrowing of the Incremental Term B-1 Loans and to the application of proceeds therefrom; provided that, to the extent that such counterpart originals representations and warranties specifically refer to an earlier date or certified copies period, they shall be true and correct in all material respects as of such documents earlier date or period; provided further that any representation and warranty that is qualified as Administrative Agent may reasonably request.
F. Company to “materiality,” “Material Adverse Effect” or similar language shall pay to each Lender executing this Amendment be true and correct in all respects on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% date of such Lender’s Revolving Loan Exposureborrowing or on such earlier date, as the case may be (after giving effect to such qualification); and
(viii) no Default or Event of Default shall have occurred and be continuing or would result from the incurrence of the Incremental Term B-1 Loans or from the application of the proceeds therefrom.
Appears in 2 contracts
Samples: Amendment Agreement (Blue Buffalo Pet Products, Inc.), Amendment Agreement (Blue Buffalo Pet Products, Inc.)
Conditions to Effectiveness. Section 1 of this Amendment This Agreement shall become effective only upon on the satisfaction of all of date (the “Incremental 2012 Term Effective Date”) that is the first Business Day on which the following conditions precedent are satisfied or waived (provided that Section 2 hereof may be modified to make ministerial changes to reflect the date completion of satisfaction of such conditions being referred to herein the Incremental 2012 Term Effective Date in a manner as reasonably agreed between the “First Amendment Effective Date”Borrower and the Administrative Agent):
A. On (a) the Administrative Agent shall have received executed signature pages to this Amendment from US Holdings, the Borrower, each other Credit Party that is party to a Credit Document and Citibank, N.A., in its capacity as Administrative Agent and Collateral Agent;
(b) each of the conditions to effectiveness of the December 2012 Extension Amendment shall have been satisfied except with respect to the payment of the Extension Fee set forth therein;
(c) the Administrative Agent shall have received (A) a certificate of an Authorized Officer of each Credit Party attaching (x) a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors, other managers or before the First Amendment Effective Date, Company shall deliver to Lenders general partner of each Credit Party (or to Administrative Agent for Lenders with sufficient originally executed copiesa duly authorized committee thereof) authorizing the execution, where appropriatedelivery and performance of this Agreement and the December 2012 Extension Amendment and the performance of the Credit Agreement and the other Credit Documents, for in each Lendercase as modified by this Agreement and the December 2012 Extension Amendment, (y) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies true and complete copies of all amendments to the Organizational Documents of Company executed the Credit Parties (which may be incorporated by reference into such certificate to the extent the same are publicly available on or after February 19, 2008the SEC’s website at xxx.xxx.xxx in filings identified in such certificate), in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, case certified as of the First Amendment Incremental 2012 Term Effective Date by the secretary or similar officer such Authorized Officer as being in full force and effect without modification or amendment;
3. Signature , (B) signature and incumbency certificates of its officers each officer executing this Amendment, the Pledge Agreement Amendment and the Deed December 2012 Extension Amendment or any other document delivered in connection herewith or therewith on behalf of Trusteach Credit Party and (C) good standing certificates for each Credit Party for each jurisdiction in which such Credit Party is organized; and
4. Executed copies of this Amendment and (d) the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementfrom Xxxxxx, (ii) updated schedules Xxxx & Xxxxxxxx LLP and Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Pledge AgreementBorrower, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written executed legal opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the covering such matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestrequest and otherwise reasonably satisfactory to the Administrative Agent.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Incremental Amendment (Energy Future Competitive Holdings CO), Credit Agreement (Energy Future Competitive Holdings CO)
Conditions to Effectiveness. Section 1 of this Amendment This Agreement shall become effective only upon the satisfaction of date (the “Effective Date”) on which all of the following conditions precedent shall have been satisfied or duly waived:
(a) the date execution and delivery of satisfaction of such conditions being referred to herein as this Agreement by the “First Amendment Effective Date”):Loan Parties, the Additional Lender and the Administrative Agent;
A. On or before (b) the First Amendment Effective Date, Company shall deliver to Lenders (or to receipt by the Administrative Agent for Lenders with sufficient originally executed copiesand the Additional Lender, where appropriateas applicable, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to fees and reimbursable expenses that have been invoiced as of the Organizational Documents of Company executed on or after February 19, 2008Effective Date (or, in each casethe case of reimbursable expenses, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date at least 3 Business Days prior to the First Amendment Effective Date) that are due and payable by any Loan Party under the Credit Agreement;
2. Resolutions (c) the receipt by the Administrative Agent and the Additional Lender of its Board a certificate executed by a Responsible Officer of Directors the Borrower (i) certifying that all representations and warranties set forth in Section 2 are true and correct, (ii) attaching resolutions approving and authorizing the execution, deliveryexecution and delivery of this Agreement and certifying on behalf of itself and each of the other Loan Parties that the Operating Documents of each Loan Party have not been amended or otherwise modified since the Closing Date and (iii) demonstrating that after giving effect to the incurrence of the Requested Commitment Increase, and performance assuming a full drawing of this Amendmentsuch Commitment Increase, but without “netting” the cash proceeds thereof, the Pledge Agreement Amendment (as defined below) and the Deed of TrustConsolidated Total Leverage Ratio, certified calculated on a Pro Forma Basis as of the First Amendment Effective Date by last day of the secretary or similar officer as being in full force and effect without modification or amendment;fiscal quarter most recently ended for which financial statements are required to be delivered pursuant to Section 5.1 of the Credit Agreement, shall not exceed the maximum Consolidated Total Leverage Ratio permitted under Section 6.12 of the Credit Agreement for such period.
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment (d) The Additional Lender and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received the following (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Companycase, in form and substance reasonably satisfactory to the Additional Lender): (i) a legal opinion of counsel to the Loan Parties substantially consistent with the most recent legal opinion delivered to the Administrative Agent and (ii) a Solvency Certificate substantially in the form attached as Exhibit I to the Credit Agreement, certifying that Borrower, individually and together with its counselSubsidiaries, dated as of the First Amendment Effective Date, is and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably requestwill be Solvent after giving effect to this Agreement.
E. On or before (e) The Additional Lender shall have received, at least three Business Days prior to the First Amendment Effective Date, all corporate documentation and other proceedings taken or to be taken in connection with information about the transactions contemplated hereby Loan Parties and all documents incidental thereto not previously found acceptable Restricted Subsidiaries that it shall have reasonably determined is required by Administrative Agentregulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to including without limitation the USA Patriot Act
(f) The Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies for the account of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each the Additional Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment upfront fee equal to 1.00.50% of the Commitment Increase provided by such Additional Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Revolving Credit and Guaranty Agreement (Fitbit Inc), Revolving Credit and Guaranty Agreement (Fitbit Inc)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon on the satisfaction of all of Amendment No. 3 Effective Date, which shall be the first Business Day on which the following conditions precedent are satisfied or waived:
(i) the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders Administrative Agent (or to its counsel) shall have received counterparts of this Amendment or Consent that, when taken together, bear the signatures of (A) each Revolving Lender, (B) the Administrative Agent for Lenders with sufficient originally executed copiesAgent, where appropriate(C) Holdings, for (D) the Borrower and (E) each LenderSubsidiary Loan Party;
(ii) the Administrative Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise noted, dated the First Amendment Effective Datespecified:
1. Copies (A) a written opinion of all amendments Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Loan Parties, in a form and substance reasonably satisfactory to the Organizational Documents of Company executed Administrative Agent, as to matters substantially similar to those covered in the corresponding opinion delivered on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by Effective Date and the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment No. 2 Effective Date;
2(B) the Administrative Agent shall have received a certificate of each Loan Party as of the Amendment No. Resolutions 3 Effective Date, dated the Amendment No. 3 Effective Date, substantially in the form of its Exhibit G to the Credit Agreement or such other form reasonably acceptable to the Administrative Agent with appropriate insertions, executed by any Responsible Officer of such Loan Party, and attaching the documents referred to in clause (C) below; and
(C) the Administrative Agent shall have received (i) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery, delivery and performance of this Amendment, the Pledge Agreement Amendment (as defined belowincluding the reaffirmations set forth herein) (and the Deed of Trustany agreements relating thereto) to which it is a party, certified as of the First Amendment No. 3 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendmentamendment and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
3. Signature (iii) the fees in the amounts previously agreed in writing by Citigroup Global Markets Inc. and incumbency certificates of its officers executing this AmendmentXxxxxx Xxxxxxx Senior Funding, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent Inc. (the “Pledge Agreement AmendmentAmendment No. 3 Arrangers”).
B. Administrative Agent shall have ) to be received on the Amendment No. 3 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (i) a duly completed amendment to UCC financing statementincluding the reasonable fees, (ii) updated schedules charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, as counsel to the Pledge AgreementAmendment No. 3 Arrangers, and (iiidue diligence expenses) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken incurred in connection with the transactions contemplated hereby for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 3 Effective Date shall have been, or will be substantially simultaneously, paid in full;
(iv) the representations and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf warranties of Lenders, and its counsel each Loan Party set forth in the Section 4 of this Amendment shall be satisfactory true and correct in form all material respects on and substance as of the Amendment No. 3 Effective Date before and after giving effect to Administrative Agent this Amendment No. 3; provided that, to the extent that such representations and warranties specifically refer to an earlier date or period, they shall be true and correct in all material respects as of such counselearlier date or period; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such borrowing or on such earlier date, and Administrative Agent and as the case may be (after giving effect to such counsel qualification); and
(v) no Default or Event of Default shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestoccurred and be continuing.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Amendment Agreement No. 3 (Blue Buffalo Pet Products, Inc.), Amendment Agreement No. 3 (Blue Buffalo Pet Products, Inc.)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment and the obligations of the Term B-2 Lenders to make the Term B-2 Loans shall become effective only upon on the satisfaction of all of Amendment No. 2 Effective Date, which shall be the first Business Day on which the following conditions precedent are satisfied or waived:
(i) the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders Administrative Agent (or to its counsel) shall have received counterparts of this Amendment or Consent that, when taken together, bear the signatures of (A) each Cashless Option Lender and each Post-Closing Option Lender, (B) the Administrative Agent, (C) Holdings, (D) the Borrower and (E) each Subsidiary Loan Party;
(ii) The Administrative Agent shall have received from each Additional Term B-2 Lender an executed counterpart to the Joinder Agreement;
(iii) The Administrative Agent shall have received a notice of Borrowing for Lenders the Additional Term B-2 Loans (whether in writing or by telephone) in accordance with sufficient originally executed copies, where appropriate, for each LenderSection 2 hereof;
(iv) the Administrative Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise noted, dated the First Amendment Effective Datespecified:
1. Copies (A) a written opinion of all amendments Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Loan Parties, in a form and substance reasonably satisfactory to the Organizational Documents of Company executed Administrative Agent, as to matters substantially similar to those covered in the corresponding opinion delivered on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by Effective Date and the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment No. 1 Effective Date;
2(B) the Administrative Agent shall have received a certificate of each Loan Party as of the Amendment No. Resolutions 2 Effective Date, dated the Amendment No. 2 Effective Date, substantially in the form of its Exhibit G to the Credit Agreement or such other form reasonably acceptable to the Administrative Agent with appropriate insertions, executed by any Responsible Officer of such Loan Party, and attaching the documents referred to in clause (C) below; and
(C) the Administrative Agent shall have received (i) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the execution, delivery, delivery and performance of this Amendmentthe Amendment (including the reaffirmations set forth herein) (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the Pledge Agreement Amendment (as defined below) and the Deed extensions of Trustcredit contemplated hereunder, certified as of the First Amendment No. 2 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendmentamendment and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
3(v) pursuant to Section 2.11(a)(i) of the Credit Agreement, substantially simultaneously with the closing of Amendment No. Signature and incumbency certificates of its officers executing this Amendment2, the Pledge Agreement Amendment and Borrower shall have paid to the Deed Administrative Agent for the account of Trust; each Term Lender with an Initial Term Loan or an Incremental Term B-1 Loan immediately prior to the conversion of such Term Loans into Term B-2 Loans and
4. Executed copies of this Amendment and , if applicable, the First Amendment to Pledge and Security Agreement dated as borrowing of the date hereof between CompanyAdditional Term B-2 Loans, its Subsidiaries and Administrative Agent a fee (the “Pledge Agreement AmendmentPrepayment Premium”).
B. Administrative Agent shall have received ) equal to 1.00% of the sum of the aggregate outstanding principal amount of (ix) a duly completed amendment to UCC financing statementInitial Term Loans and (y) the Incremental Term B-1 Loans, (ii) updated schedules of each Existing Lender immediately prior to the Pledge Agreementeffectiveness hereof;
(vi) the fees in the amounts previously agreed in writing by Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx Senior Funding, Inc. (the “Amendment No. 2 Arrangers”) to be received on the Amendment No. 2 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (including the reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, as counsel to the Amendment No. 2 Arrangers, and (iiidue diligence expenses) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken incurred in connection with the transactions contemplated hereby for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 2 Effective Date shall, upon the Borrowing of the Term B-2 Loans, have been, or will be substantially simultaneously, paid in full;
(vii) the representations and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf warranties of Lenders, and its counsel each Loan Party set forth in the Section 5 of this Amendment shall be satisfactory true and correct in form all material respects on and substance as of the Amendment No. 2 Effective Date before and after giving effect to Administrative Agent this Amendment No. 2 and the borrowing of the Term B-2 Loans and to the application of proceeds therefrom; provided that, to the extent that such counselrepresentations and warranties specifically refer to an earlier date or period, they shall be true and Administrative Agent correct in all material respects as of such earlier date or period; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such counsel borrowing or on such earlier date, as the case may be (after giving effect to such qualification); and
(viii) no Default or Event of Default shall have received all such counterpart originals occurred and be continuing or certified copies would result from the incurrence of such documents as Administrative Agent may reasonably requestthe Term B-2 Loans or from the application of the proceeds therefrom.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Amendment Agreement No. 2 (Blue Buffalo Pet Products, Inc.), Amendment Agreement No. 2 (Blue Buffalo Pet Products, Inc.)
Conditions to Effectiveness. Section 1 of this Amendment This Agreement shall become effective only upon as of the satisfaction of all of date (the “Effective Date”) on which the following conditions precedent have been satisfied or waived:
(a) The Administrative Agent shall have received counterparts of this Agreement executed by the date Loan Parties, each Commitment Increase Lender, the U.S. L/C Issuer and the U.S. Swing Line Lender.
(b) Immediately before and after giving effect to this Agreement:
(i) the representations and warranties of satisfaction each Borrower and each other Loan Party contained in Article V of such conditions being referred to herein the Credit Agreement or any other Loan Document shall be true and correct in all material respects (or in all respects in the case of any representations and warranties qualified by materiality) on and as of the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall deliver to Lenders be true and correct in all material respects (or in all respects in the case of any representations and warranties qualified by materiality) as of such earlier date, and except that the representations and warranties contained in Sections 5.05(a) and (b) of the Credit Agreement shall be deemed to Administrative Agent for Lenders with sufficient originally executed copiesrefer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) of the Credit Agreement, where appropriaterespectively;
(ii) no Default or Event of Default shall exist, for each Lenderor would result from, the effectiveness of this Agreement; and
(iii) (A) the followinglesser of (1) the Total Borrowing Base and (2) the Revolving Credit Facility, each, unless otherwise noted, dated exceeds the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State Outstanding Amount of the State of DelawareRevolving Credit Loans, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving Swing Line Loans and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified L/C Obligations as of the First Amendment Effective Date by Date, after giving effect to this Agreement, (B) the secretary or similar officer lesser of (1) the U.S. Borrowing Base and (2) the U.S. Revolving Credit Facility, exceeds the Outstanding Amount of the U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C Obligations as being in full force of the Effective Date, after giving effect to this Agreement and (C) the lesser of (1) the Canadian Borrowing Base and (2) the Canadian Revolving Credit Facility, exceeds the Outstanding Amount of the Canadian Revolving Credit Loans, Canadian Swing Line Loans and Canadian L/C Obligations as of the Effective Date, after giving effect without modification or amendment;to this Agreement.
3. Signature and incumbency certificates (c) The Administrative Agent shall have received a certificate from a Responsible Officer of its officers executing this Amendmentthe Specified U.S. Borrower, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between CompanyEffective Date, its Subsidiaries and Administrative Agent (certifying as to the “Pledge Agreement Amendment”)matters set forth in Section 3(b) hereof.
B. (d) The Administrative Agent shall have received (i) a duly completed amendment favorable opinion of Weil, Gotshal & Xxxxxx LLP, counsel to UCC financing statementthe Loan Parties, addressed to the Administrative Agent, the U.S. L/C Issuer, the U.S. Swing Line Lender and the Commitment Increase Lenders with respect to the enforceability of the transactions under this Agreement and (ii) updated schedules to a certificate of the Pledge AgreementSecretary or Assistant Secretary of each Loan Party dated as of the Effective Date and certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent body) of such Loan Party authorizing the execution, delivery and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powersperformance of this Agreement and that such resolutions have not been modified, duly endorsed rescinded or amended and are in blank full force and otherwise satisfactory in form and substance to Administrative Agent)effect, in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to the Administrative Agent.
(e) The Specified U.S. Borrower shall have paid all fees and expenses of the Administrative Agent (including all reasonable fees and its counsel, dated as expenses of counsel to the First Amendment Effective Date, Administrative Agent) and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with this Agreement in accordance with Section 11.04 of the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestCredit Agreement.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Joinder and Amendment Agreement (Nortek Inc), Joinder and Amendment Agreement (Nortek Inc)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective upon the date hereof only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (a) The Administrative Agent (or its counsel) shall have received either (i) a counterpart of this Amendment signed on behalf of the Borrower and Lenders constituting Required Lenders or (ii) written evidence satisfactory to the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on (which may include facsimile or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is other electronic transmission of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance signed counterpart of this Amendment, ) that the Pledge Agreement Borrower and Lenders constituting Required Lenders have signed a counterpart of this Amendment.
(b) The Administrative Agent (or its counsel) shall have received evidence reasonably satisfactory to the Administrative Agent that (a) the Term Loan Amendment (as defined below) shall have been executed and the Deed of Trust, certified as of the First Amendment Effective Date delivered by the secretary or similar officer as being parties thereto and shall be in full force and effect without modification or amendment;
3. Signature and incumbency certificates (b) the Intercreditor Agreement shall have been amended pursuant to an amendment in substantially the form of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent Exhibit A hereto (the “Pledge Intercreditor Agreement Amendment”), which amendment shall have been executed and delivered by the parties thereto and shall be in full force and effect. The Required Lenders party hereto approve the Intercreditor Agreement Amendment and authorize and direct the Administrative Agent to execute the Intercreditor Amendment Agreement.
B. Administrative Agent shall have received (ic) a duly completed amendment to UCC financing statement, (ii) updated schedules to The representations and warranties of each Loan Party set forth in the Pledge Agreement, and (iii) certificates (which certificates Loan Documents shall be accompanied by irrevocable undated stock powers, duly endorsed in blank true and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens correct in all intellectual property of Company material respects on and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date before and after giving effect to the amendments contemplated hereunder and the Term Loan Amendment, as though made on and as of the Effective Date; provided that, to the extent that such representations and setting forth warranties specifically refer to an earlier date or period, they shall be true and correct in all material respects as of such earlier date or period; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the matters date of such credit extension or on such earlier date, as Administrative Agent acting on behalf of Lenders the case may reasonably requestbe (after giving effect to such qualification).
E. On (d) At the time of and immediately after giving effect this Amendment, no Default or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf Event of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel Default shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestoccurred and be continuing.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Credit Agreement (Constellium Holdco B.V.), Credit Agreement (Constellium Holdco B.V.)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment and the obligations of the Term B-3 Lenders to make the Term B-3 Loans shall become effective only upon on the satisfaction of all of Amendment No. 4 Effective Date, which shall be the first Business Day on which the following conditions precedent are satisfied or waived:
(i) the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders Administrative Agent (or to its counsel) shall have received counterparts of this Amendment or Consent that, when taken together, bear the signatures of (A) each Cashless Option Lender and each Post-Closing Option Lender, (B) the Administrative Agent, (C) Holdings, (D) the Borrower and (E) each Subsidiary Loan Party;
(ii) The Administrative Agent shall have received a notice of Borrowing for Lenders the Term B-3 Loans (whether in writing or by telephone) in accordance with sufficient originally executed copies, where appropriate, for each LenderSection 2 hereof;
(iii) the Administrative Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise noted, dated the First Amendment Effective Datespecified:
1. Copies (A) a written opinion of all amendments Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Loan Parties, in a form and substance reasonably satisfactory to the Organizational Documents of Company executed Administrative Agent, as to matters substantially similar to those covered in the corresponding opinion delivered on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by Effective Date and the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment No. 1 Effective Date;
2(B) the Administrative Agent shall have received a certificate of each Loan Party as of the Amendment No. Resolutions 4 Effective Date, dated the Amendment No. 4 Effective Date, substantially in the form of its Exhibit G to the Credit Agreement or such other form reasonably acceptable to the Administrative Agent with appropriate insertions, executed by any Responsible Officer of such Loan Party, and attaching the documents referred to in clause (C) below; and
(C) the Administrative Agent shall have received (i) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the execution, delivery, delivery and performance of this Amendmentthe Amendment (including the reaffirmations set forth herein) (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the Pledge Agreement Amendment (as defined below) and the Deed extensions of Trustcredit contemplated hereunder, certified as of the First Amendment No. 4 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendmentamendment and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
3. Signature (iv) the fees in the amounts previously agreed in writing by Citigroup Global Markets Inc. and incumbency certificates of its officers executing this AmendmentXxxxxx Xxxxxxx Senior Funding, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent Inc. (the “Pledge Agreement AmendmentAmendment No. 4 Arrangers”).
B. Administrative Agent shall have ) to be received on the Amendment No. 4 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (i) a duly completed amendment to UCC financing statementincluding the reasonable fees, (ii) updated schedules charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, as counsel to the Pledge AgreementAmendment No. 4 Arrangers, and (iiidue diligence expenses) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken incurred in connection with the transactions contemplated hereby for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 4 Effective Date shall, upon the Borrowing of the Term B-3 Loans, have been, or will be substantially simultaneously, paid in full;
(v) the representations and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf warranties of Lenders, and its counsel each Loan Party set forth in Section 5 of this Amendment shall be satisfactory true and correct in form all material respects on and substance as of the Amendment No. 4 Effective Date before and after giving effect to Administrative Agent this Amendment No. 4 and the borrowing of the Term B-3 Loans and to the application of proceeds therefrom; provided that, to the extent that such counselrepresentations and warranties specifically refer to an earlier date or period, they shall be true and Administrative Agent correct in all material respects as of such earlier date or period; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such counsel borrowing or on such earlier date, as the case may be (after giving effect to such qualification); and
(vi) no Default or Event of Default shall have received all such counterpart originals occurred and be continuing or certified copies would result from the incurrence of such documents as Administrative Agent may reasonably requestthe Term B-3 Loans or from the application of the proceeds therefrom.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Amendment Agreement No. 4 (Blue Buffalo Pet Products, Inc.), Amendment Agreement No. 4 (Blue Buffalo Pet Products, Inc.)
Conditions to Effectiveness. Section 1 of this Amendment This Agreement shall become effective only upon on the satisfaction of all date that each of the following conditions precedent are satisfied or waived:
(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to a) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for shall have received each Lender) of the following, each, each of which shall be originals or facsimiles or PDFs delivered by electronic mail unless otherwise notedspecified:
(i) from each party hereto, dated a counterpart of this Agreement executed by such party; and
(ii) a Revolving Loan Note executed by the First Amendment Borrower in favor of each Lender that has requested a Revolving Loan Note at least two (2) Business Days prior to the Effective Date.
(b) The Guarantee Requirement shall have been satisfied.
(c) The Administrative Agent shall have received:
1. Copies (i) copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent body of each Credit Party authorizing the Transactions to which such Credit Party is a party, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Credit Party;
(ii) a certificate of the Secretary or Assistant Secretary of each Credit Party certifying the names and true signatures of the officers of such Credit Party authorized to execute, deliver and perform, as applicable, this Agreement and all amendments other Loan Documents to be delivered by such Credit Party hereunder;
(iii) the Organizational Documents articles or certificate of Company executed incorporation or equivalent document of each Credit Party as in effect on or after February 19, 2008, in each casethe Effective Date, certified by the Secretary of State (or similar, applicable Governmental Authority) of Delaware or, if such document is its state of incorporation or organization as of a type that may not be so certifiedrecent date;
(iv) the bylaws or equivalent document of each Credit Party as in effect on the Effective Date, certified by the secretary Secretary or similar officer Assistant Secretary of Company, together with such Credit Party as of the Effective Date;
(v) a certificate of good standing certificate or equivalent document for each Credit Party from the Secretary of State (or similar, applicable Governmental Authority) of the State its state of Delawareincorporation or organization as of a recent date; and
(vi) certified copies of Uniform Commercial Code, tax and judgment lien searches, or equivalent reports or searches, each dated of a recent date listing all effective financing statements, lien notices or comparable documents that name any Credit Party as debtor and that are filed in those state and county jurisdictions in which any Credit Party is organized or maintains its principal place of business and such other searches that the Administrative Agent reasonably deems necessary and requested at least five (5) days prior to the First Amendment Effective Date;.
2. Resolutions (d) The Administrative Agent shall have received a written opinion, reasonably acceptable to the Administrative Agent in form and substance (addressed to the Administrative Agent and the Lenders and dated the Effective Date), from each of its Board of Directors approving and authorizing (i) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the execution, deliveryCredit Parties, and performance (ii) Xxxxxxxxx Xxxxx, P.C., Nevada counsel for the Credit Parties.
(e) The Administrative Agent shall have been paid (i) all costs, fees and expenses (including, without limitation, Attorney Costs of this Amendmentthe Administrative Agent, the Pledge Agreement Amendment Arranger, the Bookrunner and recording taxes and fees) to the extent then due and payable to the Administrative Agent, the Arranger or the Bookrunner and (as defined belowii) and the Deed of Trust, certified as of the First Amendment Effective Date all other compensation contemplated by the secretary or similar officer as being in full force Commitment Letter and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendmenteach Fee Letter payable to the Administrative Agent, the Pledge Agreement Amendment and Arranger, the Deed of Trust; and
4. Executed copies of this Amendment and Bookrunner or the First Amendment Lenders on or before the Effective Date, in each case to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent extent invoiced at least two (2) Business Days prior to the “Pledge Agreement Amendment”)Effective Date.
B. (f) Since December 31, 2019, no event, circumstance or change shall have occurred that has caused or evidences, or could reasonably be expected to result in, either in any case or in the aggregate, a Material Adverse Effect.
(g) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to certificate signed by a Responsible Officer of the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counselBorrower, dated as of the First Amendment Effective Date, (A) confirming that the Borrower and setting forth its Subsidiaries have received all required approvals of the matters as Administrative Agent acting on behalf Transactions from each applicable Governmental Authority and (B) certifying that the conditions precedent specified in Section 4.01(f), (h), (j), (m) and (n) have been satisfied and (ii) a solvency certificate executed by an authorized representative of Lenders may reasonably request.the Borrower, substantially in the form of Exhibit G.
E. On or before the First Amendment Effective Date, all corporate (h) All governmental and other proceedings taken or regulatory authorizations necessary to be taken obtained on the part of the Borrower or any of its Subsidiaries in connection with the transactions financing contemplated hereby shall have been obtained and all documents incidental thereto not previously found acceptable be in full force and effect.
(i) Each Credit Party shall have provided any documentation and other information to the Administrative Agent that the Administrative Agent or the Lenders reasonably determine to be required by regulatory authorities under applicable “know-your-customer” rules and Anti-Money Laundering Laws, including the PATRIOT Act, at least two (2) Business Days prior to the Effective Date as has been reasonably requested in writing at least four (4) Business Days prior to the Effective Date by the Administrative Agent, acting on behalf of Agent or the Lenders, and its counsel . The Borrower shall be satisfactory in form and substance have delivered a Beneficial Ownership Certification to the Administrative Agent and such counsel, each Lender requesting one.
(j) There will not exist (after giving effect to the financing hereunder) any “event of default” under any Material Indebtedness of the Borrower or its Subsidiaries.
(k) The organizational structure of the Borrower and its Subsidiaries will be as set forth on Schedule 4.01(k).
(l) The Administrative Agent and such counsel the Lenders shall have received all such counterpart originals or certified copies at least five (5) calendar days prior to the Effective Date (i) the Historical Financial Statements and (ii) the most recent Annual Statements and Quarterly Statements (for those periods ending after delivery of the most recent Annual Statements for each Insurance Subsidiary) of each Insurance Subsidiary as filed with the insurance regulator of such documents as Administrative Agent may reasonably requestInsurance Subsidiary’s jurisdiction of domicile on or prior to such date, in each case, to the extent such reports and statements have been prepared by such Insurance Subsidiaries.
F. Company (m) All of the representations and warranties contained herein or in any Loan Document shall pay be true and correct in all material respects on and as of the Effective Date to each Lender executing this Amendment the same extent as though made on or before and as of that date, except to the close of business (San Francisco time) 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 February 26, 2009, an amendment fee equal to 1.0% and as of such Lender’s Revolving Loan Exposureearlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
(n) No Default or Event of Default shall have occurred and be continuing on the Effective Date or immediately after giving effect to the financing hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Employers Holdings, Inc.), Credit Agreement (Employers Holdings, Inc.)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon is subject to the satisfaction of all of the following conditions precedent or concurrent:
(a) this Amendment shall have been duly executed and delivered by the date of satisfaction of such conditions being referred to herein as Loan Parties, the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderand the Lenders;
(b) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Omnibus Affirmation Agreement dated as of the date hereof between Company, its Subsidiaries among the Loan Parties and the Administrative Agent shall have been duly executed and delivered by the Loan Parties and the Administrative Agent;
(c) the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received a fully-executed Committed Loan Notice for the Term Loans to be advanced on the Amendment No. 2 Effective Date;
(id) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property a favorable opinion of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of JonesWeil, WalkerGotshal, Waechter& Xxxxxx, Poitevent, Carrere & Xxxxxxx, L.L.P.LLP, counsel for Companyto the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received a favorable opinion of McGuireWoods LLP, counsel to the Loan Parties, addressed to the Administrative Agent and its counseleach Lender, dated in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party and attaching copies of the Organization Documents of each Loan Party certified as of a recent date or certifying that such Organization Documents have not been modified since previously delivered to the First Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a Certificate of Good Standing from the relevant jurisdiction of formation or incorporation with respect to each Loan Party;
(h) each Lender requesting a Note shall have received a Term Note duly executed by the Borrower in favor of such Lender, amending and restating the Term Note previously delivered to such Lender, each in form and substance satisfactory to such Lender;
(i) the Administrative Agent shall have received a certificate from the chief financial officer of each Loan Party, in form and substance reasonably satisfactory to the Administrative Agent attesting to (i) the Solvency of the Loan Parties, taken as a whole, before and after giving effect to the extension of Loans on the Amendment No. 2 Effective Date, and setting (ii) that Holdings and its Subsidiaries have a Consolidated Total Lease Adjusted Leverage Ratio for the twelve (12) month period ending as of December 29, 2013 of no more than 5.50 to 1.00 after giving effect to the Amendment No. 2 Transactions; provided that any reference to “Measurement Period” in the definition of Consolidated Total Lease Adjusted Leverage Ratio and any component definition thereof shall instead refer to the twelve (12) month period ending as of December 29, 2013;
(j) the representations and warranties set forth in Section 5 hereof shall be true and correct;
(k) (i) all fees required to be paid to the matters as Administrative Agent acting and the Lead Arranger on behalf of the Amendment No. 2 Effective Date shall have been paid and (ii) all fees required to be paid to the Lenders may reasonably request.
E. On on or before the First Amendment No. 2 Effective Date, all corporate and other proceedings taken Date shall have been paid (or to shall be taken in connection paid concurrently with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by closing of the Amendment);
(l) the Administrative AgentAgent shall have received evidence, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance satisfactory to the Administrative Agent and such counselAgent, and Administrative Agent and such counsel shall have received that all such counterpart originals or certified copies of such documents as action that the Administrative Agent may reasonably request.deem necessary or desirable in order to perfect the Liens created under the Collateral Documents has been taken;
F. Company (m) the Borrower shall pay have paid all fees, charges and disbursements of counsel to each Lender executing this Amendment the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced on or before prior to the close Amendment No. 2 Effective Date; and
(n) the Administrative Agent shall have received an updated Compliance Certificate as of business (San Francisco time) on February 26December 29, 20092013 signed by the chief executive officer, an amendment fee equal chief financial officer, treasurer or controller of Holdings, amended to 1.0% of such Lender’s Revolving Loan Exposure.give pro forma effect to the Amendment No. 2
Appears in 2 contracts
Samples: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Conditions to Effectiveness. Section 1 Sections 1, 2 and 3 of this Amendment Agreement shall become effective only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. (a) On or before the First Amendment Effective Date, Company Company, Parent and Guarantors shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the Purchasers the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies i. copies of all amendments to the Organizational Documents of Company such Person executed on or after February 19October 9, 2008, in each case, certified by the Secretary of State of Delaware 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 Companysuch Person, together with a good standing certificate from the Secretary of State of its jurisdiction of organization and, to the State extent generally available, a certificate or other evidence of Delawaregood standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of such jurisdiction, each dated a recent date prior to the First Amendment Effective Date;
2ii. Resolutions resolutions of its Board board of Directors directors, manager or sole member, as the case may be, approving and authorizing the execution, delivery, and performance of this AmendmentAgreement, the Pledge Warrants, the Warrant Agreement Amendment (as defined below), and the Registration Rights Agreement Acknowledgment (as defined below) and approving and authorizing the Deed execution, delivery and payment of Trustthe Incremental Indebtedness Notes, certified as of the First Amendment Effective Date by the its corporate secretary or similar officer an assistant secretary as being in full force and effect without modification or amendment;
3iii. Signature signature and incumbency certificates of its officers executing this AmendmentAgreement, the Pledge Incremental Indebtedness Notes, the Warrants, the Warrant Agreement Amendment (as defined below) and the Deed of TrustRegistration Rights Agreement Acknowledgment (as defined below); and
4iv. Executed executed copies of this Amendment Agreement, the Incremental Indebtedness Notes, the Warrants, the warrant agreement substantially in the form of an Additional Warrant Agreement except with respect to the issuance date, the warrant holder and the First Amendment Warrant Shares to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent be issued thereunder (the “Pledge Warrant Agreement”), and Parent’s acknowledgment to the Registration Rights Agreement Amendmentrelating to the issuance of the Warrants and the Warrant Shares (the “Registration Rights Agreement Acknowledgment”).
B. Administrative (b) The Purchasers and the Collateral Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions opinion of JonesWeil, Walker, Waechter, Poitevent, Carrere Gotshal & Xxxxxxx, L.L.P.Xxxxxx LLP, counsel for Company, Parent and Guarantors, in the form and substance reasonably satisfactory to Administrative Agent and its counselattached as Exhibit A hereto, dated as of the First Amendment Effective Date, with respect to the enforceability of the Incremental Indebtedness Notes and setting forth the other Notes, Warrants, Warrant Agreement, this Agreement, Modified Agreement (as hereinafter defined) and as to such other matters as Administrative the Purchasers and the Collateral Agent acting on behalf of Lenders may reasonably request.
E. (c) On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and any Purchaser or its counsel shall be satisfactory in form and substance to Administrative Agent such Purchaser and such counsel, and Administrative Agent such Purchaser and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent such Purchaser may reasonably request.
F. (d) After giving effect to the transactions contemplated by this Agreement, (i) no Default or Event of Default (each as defined under the Note Documents) shall have occurred and be continuing under the Note Documents or result from this Agreement becoming effective in accordance with its terms, (ii) no Default or Event of Default (each as defined under the First Lien Documents) shall have occurred and be continuing under the First Lien Documents or result from this Agreement becoming effective in accordance with its terms, and (iii) no Default or Event of Default (each as defined under the Exchange Note Documents) shall have occurred and be continuing under the Exchange Note Documents or result from this Agreement becoming effective in accordance with its terms, and Company shall pay have delivered an officer’s certificate to such effect.
(e) The Purchasers shall have received a Solvency Certificate from Company and Parent dated as of the Effective Date and addressed to the Purchasers and the Collateral Agent, and in form, scope and substance satisfactory to the Purchasers, with appropriate attachments and demonstrating that after giving effect to the consummation of the transactions contemplated by this Agreement, Company and Parent, each Lender executing individually, and Parent and its Subsidiaries, taken as a whole on a consolidated basis, are, and will be Solvent.
(f) The Purchasers and the Collateral Agent shall have received a copy of an opinion rendered to the Board of Directors of Parent from Canaccord Xxxxx Inc., stating that the economic terms of the Incremental Indebtedness Notes, pursuant to the terms of this Amendment Agreement, are fair to Parent from a financial point of view.
(g) The Purchasers and the Collateral Agent shall have received a copy of an opinion from Valuation Research Company rendered to the Finance Committee of the Board of Directors of Parent, in form, scope and substance satisfactory to the Purchasers and the Collateral Agent, with appropriate attachments, demonstrating that after giving effect to the consummation of the transactions contemplated under this Agreement, Company and Parent, each individually, and Parent and its Subsidiaries, taken as a whole on a consolidated basis, are, and will be Solvent.
(h) Without limiting any obligation of Company to reimburse the expenses pursuant to the terms of the Note Documents, Company hereby agrees that on or before the close of business Effective Date, Company shall reimburse each Purchaser for any and all out-of-pocket expenses (San Francisco timeincluding reasonable attorneys’ fees) on February 26, 2009, an amendment fee equal to 1.0% of incurred by such Lender’s Revolving Loan ExposurePurchaser in connection with this Agreement and the matters related hereto.
Appears in 2 contracts
Samples: Second Lien Incremental Indebtedness Agreement (Avenue Capital Management II, L.P.), Second Lien Incremental Indebtedness Agreement (NextWave Wireless Inc.)
Conditions to Effectiveness. Section 1 This Amendment shall be deemed to be effective upon the Administrative Agent's confirmation of receipt of the following:
a) a counterpart signature page to this Amendment shall become effective only upon duly executed and delivered by each Loan Party and each Lender under the satisfaction of all Credit Agreement;
b) good standing certificates from each of the following conditions precedent Borrowers and the other Loan Parties;
c) certificates of the secretary or assistant secretary of each Loan Party certifying as to (i) the date legal existence of satisfaction each Loan Party, (ii) resolutions authorizing the amendments contemplated herein, and (ii) confirmation that there have been no changes to the charter or bylaws of such conditions being referred Loan Party since February 7, 2006 and such charters and bylaws remain in full force and effect, or an Exhibit to herein as such certificate evidencing any such changes;
d) payment of fees and amounts owing (i) pursuant to §2.15 of the “First Amendment Effective Date”):
A. On Credit Agreement in the aggregate amount of $29,105.01, and (ii) any other fees and expenses payable on or before the First Amendment Effective Dateeffective date hereof;
e) a favorable written opinion (addressed to the Agent and each Lender and dated the date hereof) of Xxx Xxxxxx LLP, Company shall deliver with respect to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderi) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance enforceability of this Amendment, the Pledge Credit Agreement Amendment (as defined below) amended hereby, and confirming that the security interests granted by the Loan Parties in favor of the Collateral Agent and the Deed of Trust, certified as of Lenders under the First Amendment Effective Date by the secretary or similar officer as being in full force and Loan Documents is continuing after giving effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing to this Amendment, the Pledge Agreement Amendment and the Deed (ii) with respect to each Loan Party, corporate status, authority, due authorization and no conflicts as well as due execution and delivery of Trustthis Amendment; and
4. Executed copies of this Amendment f) a favorable written opinion (addressed to the Agent and the First Amendment to Pledge each Lender and Security Agreement dated as of the date hereof between Companyhereof) of Xxxxxxx Xxxxxxxx, its Subsidiaries Corporate Counsel of Footstar, Inc., with respect to Meldisco K-M Cranston, R.I., Inc.’s corporate authority, due authorization and Administrative Agent (the “Pledge Agreement Amendment”)lack of conflicts.
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Exit Credit Agreement (Footstar Inc), Exit Credit Agreement (Footstar Inc)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only on the date hereof (such date, the “Amendment No. 1 Effective Date”) upon satisfaction (or, with respect to Sections 4(a)(ii) and (iii) only, waiver by the satisfaction Administrative Agent) of all each of the following conditions precedent conditions:
(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to a) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) shall have received the following, eacheach of which shall be originals, unless otherwise notedfacsimiles or copies in .pdf form by electronic mail (followed promptly by originals):
(i) counterpart signature pages to this Amendment from each Borrower, each Refinancing Revolving Credit Lender, each Incremental Revolving Credit Lender, the L/C Issuer, the Swing Line Lender, and the Administrative Agent;
(ii) a customary opinion from Ropes & Xxxx LLP, counsel to the Loan Parties, dated the First Amendment No. 1 Effective Date and addressed to the Administrative Agent and each Lender party to this Amendment;
(iii) such certificates of good standing or status (to the extent that such concepts exist) from the applicable secretary of state (or equivalent authority) of the jurisdiction of organization of each Loan Party, a certificate of customary resolutions or other customary action of each Borrower, a customary certificate of a Responsible Officer of each Borrower and an incumbency certificate of each Borrower 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 Borrower is a party or is to be a party on the Amendment No. 1 Effective Date:.
1. Copies (b) Immediately before and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
(c) Immediately before and immediately after giving effect to this Amendment, the representations and warranties of each Loan Party set forth in Article 5 of the Credit Agreement and in each other Loan 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 as so qualified), 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 (or in all respects if qualified as to “materiality” or “Material Adverse Effect”) as of such earlier date.
(d) The Administrative Agent shall have received payment of all amendments expenses required to the Organizational Documents of Company executed on be paid or after February 19, 2008reimbursed by any Borrower under or in connection with this Amendment in accordance with Section 12, in each case, certified by to the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date extent invoiced in reasonable detail prior to the First Amendment Effective Date;date hereof.
2. Resolutions of its Board of Directors approving and authorizing (e) The Borrowers shall have paid, or caused to be paid, to the executionAdministrative Agent, delivery, and performance of this Amendment, for the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as ratable benefit of the First Amendment Effective Date by Existing Revolving Credit Lenders, (i) the secretary or similar officer as being in full force principal amount of all outstanding Existing Revolving Credit Loans, (ii) all accrued and effect without modification or amendment;
3. Signature unpaid interest with respect to the Existing Revolving Credit Loans, (iii) all accrued and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as unpaid fees under Section 2.03(h) of the date hereof between Company, its Subsidiaries Credit Agreement and Administrative Agent (iv) all accrued and unpaid fees under Section 2.09(a) of the “Pledge Agreement Amendment”)Credit Agreement.
B. (f) The Administrative Agent shall have received with respect to each Mortgaged Property: (i) a duly completed amendment to UCC financing statement“life-of-loan” Federal Emergency Management Agency flood hazard determination, and (ii) updated schedules to if any improved portion of the Pledge AgreementMortgaged Property is located in a special flood hazard area, (x) a notice about Special Flood Hazard Area status and flood disaster assistance duly executed by the Parent Borrower and (iiiy) certificates (which certificates shall be accompanied evidence of flood insurance as required by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as Section 6.07(c) of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably requestCredit Agreement.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Amendment No. 1 (PF2 SpinCo, Inc.), Amendment No. 1 (Change Healthcare Inc.)
Conditions to Effectiveness. Section 1 The amendment and restatement of the Existing Credit Agreement as provided herein and the other amendments contained in this Amendment Agreement shall not become effective only upon until the satisfaction of all date on which each of the following conditions precedent is satisfied (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”or waived in accordance with Section 10.2):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendera) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. The Administrative Agent shall have received payment of all fees and other amounts due and payable on or prior to the Fifth Restatement Date, including reimbursement or payment of all reasonable out-of-pocket expenses of the Administrative Agent and SunTrust Xxxxxxxx Xxxxxxxx, Inc. as a Lead Arranger (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Loan Document and under any agreement with the Administrative Agent or SunTrust Xxxxxxxx Xxxxxxxx, Inc. as a Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a duly completed amendment counterpart of this Agreement signed by or on behalf of the Borrower, the Administrative Agent and each Lender hereto or written evidence satisfactory to UCC financing statement, the Administrative Agent (which may include telecopy or electronic mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) updated schedules to the Pledge Subsidiary Guarantee Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to the Administrative Agent, duly executed and delivered by each Domestic Subsidiary of the Borrower, excluding those Domestic Subsidiaries set forth on Schedule 3.1(b);
(iii) the Assignment and Security Agreement, duly executed and delivery by the Borrower and each Subsidiary Loan Party, in form and substance reasonably satisfactory to the Administrative Agent, together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Assignment and Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax, judgment and fixture lien 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, indicating that there are no prior Liens on any of the Collateral other than Permitted Encumbrances and Liens to be released on the Fifth Restatement Date, (C) a Perfection Certificate, duly completed and executed by the Borrower, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, if applicable and requested by the Administrative Agent;
(iv) the Pledge Agreement, duly executed and delivery by the Borrower and certain of its Domestic Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent, together with (A) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries owned directly by any Loan Party (or, if the pledge of all of the voting Capital Stock of any Foreign Subsidiary would result in materially adverse tax consequences, limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) and (B) stock or membership interest powers or other appropriate instruments of transfer executed in blank;
(v) a certificate of an authorized officer of each Loan Party, attaching and certifying copies of its bylaws or partnership agreement or limited liability company agreement, and of the resolutions of its board of directors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower executing the Loan Documents to which it is a party;
(vi) certified copies of the certificate of incorporation or other organizational documents of the Loan Parties, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of each Loan Party;
(vii) a favorable written opinion of Bass, Xxxxx & Xxxx PLC, counsel to the Loan Parties, and such other written opinions as may be reasonably requested by the Administrative Agent, addressed to the Administrative Agent for the benefit of the Lenders, covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viii) a certificate, dated the Fifth Restatement Date and signed by a Responsible Officer, confirming compliance with the conditions set forth in subsections (a), (b) and (c) of Section 3.2;
(ix) the consolidated audited financial statements of the Borrower and its counselsubsidiaries for the fiscal years ended December 31, dated 2009, December 31, 2010 and December 31, 2011, including balance sheets, income statements and cash flow statements prepared by Ernst & Young, LLP in conformity with GAAP, and the consolidated financial statements of the Borrower and its subsidiaries for the fiscal quarter ending March 31, 2012, and financial projections in reasonable detail prepared on an annual basis for the Fiscal Years 2012 through 2017;
(x) certificates of insurance, in form and detail reasonably acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the case may be;
(xi) a duly executed Notice of Borrowing for any initial Revolving Borrowing;
(xii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(xiii) a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI hereof as of March 31, 2012, calculated on a pro forma basis as if the Term Loans and any initial Revolving Borrowing had been funded as of the First Amendment Effective Date, first day of the relevant period for testing compliance (and setting forth the matters as Administrative Agent acting on behalf in reasonable detail such calculations);
(xiv) certified copies of Lenders may reasonably request.
E. On or before the First Amendment Effective Dateall consents, all corporate approvals, authorizations, registrations and other proceedings taken or filings and orders required to be taken made or obtained under any Requirement of Law, or by any contractual obligation of any Loan Party in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated hereby thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lendersapplicable waiting periods shall have expired, and its counsel no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(xv) with respect to the headquarters location, a copy of the underlying lease, as applicable, and a Collateral Access Agreement from the landlord of such leased property, which Collateral Access Agreement shall be reasonably satisfactory in form and substance to the Administrative Agent; provided, that such Collateral Access Agreement shall not be required if the Borrower is unable to deliver such Collateral Access Agreement after using its commercially reasonable efforts to do so; and
(xvi) a CUSIP number for the Commitments. Without limiting the generality of the provisions of this Section 3.1, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that executes this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all notice from such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestLender prior to the proposed Fifth Restatement Date specifying its objection thereto.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Healthways, Inc), Revolving Credit and Term Loan Agreement (Healthways, Inc)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment Confirmation on the Effective Date shall become effective only upon be subject to the satisfaction of all or waiver by Dealer of the following conditions precedent conditions: (i) the condition that the representations and warranties of Counterparty contained in the Underwriting Agreement, dated August 10, 2022, among Counterparty, Xxxxxxx Sachs & Co. LLC, BMO Capital Markets Corp., X.X. Xxxxxx Securities LLC, and Truist Securities, Inc., as the forward sellers, Xxxxxxx Sachs & Co. LLC, Bank of Montreal, JPMorgan Chase Bank, National Association, and Truist Bank, as the forward purchasers, and Xxxxxxx Xxxxx & Co. LLC as the representative of the several Underwriters named therein (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective DateUnderwriting Agreement”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and any certificate delivered pursuant thereto by Counterparty are true and correct on the Deed of Trust, certified Effective Date as if made as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementDate, (ii) updated schedules the condition that Counterparty has performed all of the obligations required to be performed by it under the Underwriting Agreement on or prior to the Pledge Effective Date, (iii) all of the conditions set forth or referenced in Section 6 of the Underwriting Agreement have been satisfied, (iv) the Underwriting Agreement remains in effect and has not terminated pursuant to Section 9 of the Underwriting Agreement, and (iiiv) certificates the condition that, as determined by Dealer in good faith and a commercially reasonable manner, neither of the following has occurred (A) Dealer or its affiliate is unable to borrow and deliver for sale a number of Shares equal to the Initial Number of Shares, or (B) in Dealer’s commercially reasonable judgment either it is impracticable to do so or Dealer or its affiliate would incur a stock loan cost of more than a rate equal to 75 basis points per annum to do so (in which certificates event this Confirmation shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting effective but the recent name change Initial Number of Company.
C. Administrative Agent Shares for this Transaction shall have received cover sheets be the number of Shares Dealer or other documents or instruments its affiliate is required to be filed deliver in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as accordance with Section 2(a) of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably requestUnderwriting Agreement).
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Forward Confirmation (Broadstone Net Lease, Inc.), Forward Confirmation (Broadstone Net Lease, Inc.)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon as of the satisfaction of all first date (such date being referred to as the “Amendment No. 4 Effective Date”, which date is June 9, 2015) when each of the following conditions precedent shall have been satisfied:
(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to a) The Administrative Agent for Lenders with sufficient originally shall have received this Amendment, duly executed copies, where appropriate, for each Lenderand delivered by (A) the followingBorrower, each(B) the Guarantors, unless otherwise noted(C) the Cashless Option Term A-1 Lenders, dated (D) the First Amendment Effective Date:Revolving Credit Lenders electing to roll over their Revolving Credit Commitments into Tranche A-1 Revolving Commitments, (E) the Additional Term A-2 Lender (if any), (F) the Additional Revolving Lender), (G) the Incremental Tranche A-1 Revolving Lenders, (H) the Administrative Agent, (I) the L/C Issuer, (J) Swing Line Lender and (K) the Collateral Agent.
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of (b) The Administrative Agent shall have received a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date Committed Loan Notice prior to the First requested date of the Amendment No. 4 Effective Date;.
2. Resolutions (c) The Administrative Agent shall have received, on behalf of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendmentitself, the Pledge Agreement Amendment (as defined below) Collateral Agent, the L/C Issuer and the Deed of TrustLenders, certified as of an opinion from Xxxxxxxx & Xxxxx LLP, special counsel to the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this AmendmentBorrower, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between CompanyAmendment No. 4 Effective Date and addressed to the Administrative Agent, its Subsidiaries the Collateral Agent, the L/C Issuer and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent (the “Pledge Agreement Amendment”)Agent.
B. (d) The Administrative Agent shall have received (i) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a duly completed amendment to UCC financing statementResponsible Officer in connection with this Amendment, and (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsela certificate, dated as of the First Amendment No. 4 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 3(f) and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request(g).
E. On or before (e) Payment of all reasonable fees and expenses due to the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counselthe Arrangers, and Administrative Agent and such counsel in each case required to be paid on the Amendment No. 4 Effective Date. Substantially simultaneously with effectiveness, (i) the Term A-1 Lenders (including all Cashless Option Term A-1 Lenders but excluding the Additional Term A-2 Lender (if any) in its capacity as such) under the existing Credit Agreement shall have received been paid (other than the principal amount of Rollover Refinancing Term A-2 Loans) all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company accrued principal and interest on their Term A-1 Loans to, but not including, the Amendment No. 4 Effective Date and (ii) the Revolving Credit Lenders under the existing Credit Agreement shall pay to each Lender executing this have been paid all accrued fees on their Revolving Credit Commitments to, but not including, the Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.No. 4
Appears in 2 contracts
Samples: Credit Agreement (CEB Inc.), Credit Agreement (CEB Inc.)
Conditions to Effectiveness. Section 1 1.01 of this Amendment shall become effective only upon the satisfaction of all of the following conditions precedent on October 31, 2013 (the date of satisfaction of such conditions being referred to herein as the “First Incremental Amendment Effective Date”):) when:
A. On or before (a) this Amendment shall have been executed and delivered by the First Borrowers, the Loan Parties, each Incremental Term Lender party hereto and the Administrative Agent;
(b) the Administrative Agent shall have received copies of bring down personal property Lien, tax and judgment Lien searches received by the Company prior to the Incremental Amendment Effective Date, Company which shall deliver not reveal the existence of any Liens on or security interest in Collateral of the Mortgaged Vessel Guarantors or any pledgor of Pledged Equity Interests other than (i) Permitted Liens or (ii) Liens as to Lenders (or to which the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) has received evidence satisfactory to it that the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed obligations secured by such Liens have been fully and finally discharged on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Incremental Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing (c) the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementcertificate of each Loan Party, (ii) updated schedules to dated the Pledge AgreementIncremental Amendment Effective Date, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance reasonably acceptable to the Administrative Agent), with appropriate insertions and attachments, including certified organizational authorizations, incumbency certifications, the certificate of incorporation or other similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified by a Responsible Officer as being in full force and effect on the Incremental Amendment Effective Date and (ii) a good standing certificate (in respect of each case reflecting jurisdiction where the recent name change “good standing” concept exists) for each Loan Party from its jurisdiction of Company.organization;
C. (d) the Administrative Agent shall have received cover sheets or a Solvency Certificate, dated the Incremental Amendment Effective Date, which demonstrates that the Company and the Restricted Subsidiaries, on a consolidated basis, are and, after giving effect to this Amendment and the other documents or instruments transactions contemplated hereby, will be and will continue to be, Solvent;
(e) the Administrative Agent and the Arrangers shall have received all fees required to be filed in order paid on or prior to create or perfect Liens in the Incremental Amendment Effective Date, and all intellectual property expenses required to be paid on the Incremental Amendment Effective Date for which reasonably detailed invoices have been presented (including the reasonable fees and expenses of legal counsel to the Administrative Agent and the Arrangers) to the Company and its Subsidiaries in at least one (1) Business Day prior to Incremental Amendment Effective Date;
(f) the United States.
D. Lenders Administrative Agent shall have received copies the executed legal opinion of one or more favorable written opinions of Jones(i) Fried, WalkerFrank, WaechterHarris, PoiteventXxxxxxx & Xxxxxxxx, Carrere LLP, special counsel to the Loan Parties, (ii) Xxxxxx & XxxxxxxXxxxxxx P.C., L.L.P., Xxxxxxxx Islands and Liberia counsel for Companythe Loan Parties, (iii) Xxxxxxxxx, Xxxxx, Xxxxxx & Associates, Republic of Malta counsel for the Loan Parties and (iv) Vives y Asociados, Republic of Panama counsel for the Loan Parties, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent and its counselshall have received a certificate of a Responsible Officer of the Company, dated as of the First Incremental Amendment Effective Date, and setting forth which certifies that (i) the matters conditions of making any extension of credit under Section 4.2 of the Credit Agreement are satisfied as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Incremental Amendment Effective Date, all corporate (ii) the representations and other proceedings taken or to be taken warranties in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf Section 2.01 of Lenders, and its counsel this Amendment shall be satisfactory true and correct in all material respects as of the date hereof and (iii) the conditions of making an Incremental Term Loan set forth in Section 2.19(a) of the Credit Agreement are satisfied as of the Incremental Amendment Effective Date; and
(h) the Administrative Agent shall have received an amendment to each existing Ship Mortgage existing prior to the Incremental Amendment Effective Date relating to the Existing Vessels, M/V Navios Joy and M/V Navios Harmony in form and substance reasonably satisfactory to the Administrative Agent, reflecting this Amendment and the transactions contemplated hereunder; provided that, with respect to clauses (f) and (h) of this Section 1.02, if such items cannot be delivered on the Incremental Amendment Effective Date after the Borrowers’ use of commercially reasonable efforts to do so, then the provision of such items shall not constitute a condition to the effectiveness of this Amendment but instead shall be required to be delivered within thirty (30) days (or such longer period as agreed to by the Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies in its sole discretion) of such documents as Administrative Agent may reasonably requestthe Incremental Amendment Effective Date.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Incremental Amendment, Incremental Amendment (Navios Maritime Partners L.P.)
Conditions to Effectiveness. Section 1 This Agreement and the Commitments of this Amendment the Lenders hereunder shall not become effective only upon until the satisfaction of all date on which each of the following conditions precedent shall be satisfied (the date or waived in accordance with Section 11.01):
(a) The Administrative Agent’s receipt from each party hereto of satisfaction either (i) a counterpart of this Agreement signed on behalf of such conditions being referred party or (ii) evidence satisfactory to herein as the Administrative Agent, which may include a facsimile or other electronic transmission (including “First Amendment Effective Datepdf” and “tif”):), that such party has signed a counterpart of this Agreement.
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to b) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) Agent’s receipt of the following, eacheach of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), unless otherwise notedfollowed promptly after the Effective Date by originals, dated provided that the First Amendment delivery of any originals shall not be a condition precedent to the Effective Date:
1. Copies (i) a certificate, dated the Effective Date and signed by a Responsible Officer of all amendments each of Ultimate Parent, Intermediate Parent, the Borrower, Actavis and Actavis SCS, (A) certifying and attaching the resolutions adopted by such Person authorizing the execution, delivery and performance of this Agreement and, if applicable, the Notes, (B) certifying as to the Organizational Documents incumbency and specimen signature of Company executed on or after February 19, 2008, in each case, certified by Responsible Officer executing this Agreement and the Secretary of State of Delaware orNotes, if applicable, on behalf of such document is of a type that may not be so certifiedPerson, certified by the secretary or similar officer of Company, together with (C) attaching a good standing certificate from (or the Secretary local equivalent, to the extent applicable in the relevant jurisdiction) and a certificate of State incorporation (or the local equivalent) evidencing that such Person is validly existing and in good standing (or the local equivalent, to the extent applicable in the relevant jurisdiction) in its jurisdiction of organization and (D) certifying and attaching a true and complete copy of the State Organization Documents of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trustsuch Person; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to an executed legal opinion of (A) Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special New York counsel for Ultimate Parent and the Pledge AgreementLoan Parties, (B) Xxxxxx Xxx, special Irish counsel for Ultimate Parent, (C) Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for Intermediate Parent, (D) Loyens & Loeff Luxembourg S.à x.x., special Luxembourg counsel for the Borrower and Actavis SCS, and (iiiE) certificates (which certificates shall be accompanied by irrevocable undated stock powersXxxxxxxxx Xxxxxxx LLP, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent)special Nevada counsel for Actavis, in each case reflecting addressed to the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in each Lender, dated the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) All fees due to the Administrative Agent and its counselthe Arrangers pursuant to the Fee Letters and, dated as of to the First Amendment Effective Date, and setting forth extent invoiced at least two (2) Business Days prior to the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate reasonable and other proceedings taken or documented expenses to be taken in connection with paid or reimbursed to the transactions contemplated hereby Administrative Agent and all documents incidental thereto not previously found acceptable the Arrangers on or prior to the Effective Date pursuant to the Commitment Letter, shall have been paid.
(d) To the extent requested at least ten (10) Business Days prior to the Effective Date by any Lender through the Administrative Agent, acting on behalf of Lenders, Ultimate Parent and its counsel the Loan Parties shall be satisfactory in form and substance have delivered to the Administrative Agent and such counselthe Lenders at least one (1) Business Day prior to the Effective Date the documentation and other information with respect to Ultimate Parent and the Loan Parties that is required by regulatory authorities under applicable “know-your-customer” rules and regulations, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestincluding the Patriot Act.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Term Loan Credit and Guaranty Agreement (Warner Chilcott LTD), Bridge Loan Credit and Guaranty Agreement (Warner Chilcott LTD)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):) on which:
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to a) The Administrative Agent for Lenders with sufficient originally shall have received this Amendment, executed copiesand delivered by a duly authorized officer of each of the Borrower, where appropriateHoldings, for each Lenderother Credit Party and each of the Continuing Lenders.
(b) The Administrative Agent shall have received, in the followingcase of each Credit Party, eacheach of the items referred to in subclauses (i), unless otherwise noted, dated the First Amendment Effective Date(ii) and (iii) below:
1. Copies (i) a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments to the Organizational Documents thereto, of Company executed on or after February 19, 2008each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of Delaware orthe jurisdiction of its organization, if and a certificate as to the good standing (to the extent such document is concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a type that may not be so certified, certified by recent date from such Secretary of State (or other similar official);
(ii) a certificate of the secretary Secretary or Assistant Secretary or similar officer of Company, together with each Credit Party dated the Amendment Effective Date and certifying:
(A) that attached thereto is a good standing certificate from the Secretary of State true and complete copy of the State bylaws (or partnership agreement, limited liability company agreement or other equivalent governing document) of Delaware, each dated such Credit Party as in effect on the Amendment Effective Date and at all times since a recent date prior to the First Amendment Effective Date;date of the resolutions described in clause (B) below,
2. Resolutions (B) that attached thereto is a true and complete copy of its Board resolutions duly adopted by the board of Directors approving and directors (or managing general partner, managing member or equivalent) of such Credit Party authorizing the execution, delivery, delivery and performance of this Amendment, the Pledge Credit Agreement Amendment (as defined below) amended hereby, and other the Deed of TrustCredit Documents or amendments thereto, certified as to which such person is a party and, in the case of the First Amendment Effective Date by Borrower, the secretary borrowings under the Credit Agreement as amended hereby, and that such resolutions have not been modified, rescinded or similar officer as being amended and are in full force and effect without modification on the Amendment Effective Date,
(C) that the certificate or amendment;articles of incorporation, certificate of limited partnership, articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to subclause (i) above,
3. Signature (D) as to the incumbency and incumbency certificates specimen signature of its officers each officer executing this Amendment, the Pledge Agreement Amendment and any other Credit Document or any other document delivered in connection herewith on behalf of such Credit Party, and
(E) as to the Deed absence of Trustany pending proceeding for the dissolution or liquidation of such Credit Party; and
4. Executed copies (iii) a certificate of this Amendment a director or an officer as to the incumbency and the First Amendment to Pledge and Security Agreement dated as specimen signature of the date hereof between Company, its Subsidiaries and Administrative Agent Secretary or Assistant Secretary or similar officer executing the certificate pursuant to subclause (the “Pledge Agreement Amendment”)ii) above.
B. (c) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementcertificate from an officer of the Borrower certifying that, (ii) updated schedules as of the Amendment Effective Date, the Borrower is in compliance with Section 9.11 of the Credit Agreement, including with respect to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of CompanyCollateral Coverage Minimum.
C. (d) The Administrative Agent shall have received cover sheets or other documents or instruments required received, on behalf of itself and the Secured Parties on the Amendment Effective Date, a written opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, special counsel to be filed in order the Credit Parties (A) dated the Amendment Effective Date, (B) addressed to create or perfect Liens in all intellectual property of Company the Administrative Agent, the Collateral Agent, the Continuing Lenders and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, each Issuing Bank and (C) in form and substance reasonably satisfactory to the Administrative Agent and its counselotherwise consistent with those delivered in connection with the Borrowing Base Agreement and Fourth Amendment Agreement to the Credit Agreement, dated as of April 6, 2015. The Borrower, the First other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinion.
(e) Concurrently with the Amendment Effective Date, the Borrower shall have issued Permitted Additional Debt in an aggregate stated principal amount equal to or greater than the difference between (x) $1,600,000,000 and (y) the Total Commitments as in effect after giving effect to this Amendment, and, to the extent revolving Loans under the Credit Agreement are outstanding on the Amendment Effective Date, shall have applied (or shall apply concurrently with receipt) the net cash proceeds thereof to repay such revolving Loans under the Credit Agreement, together with all accrued interest and fees owing to any of the Exiting Lenders or any of the Continuing Lenders as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a solvency certificate dated as of the Amendment Effective Date substantially in the form of Exhibit J to the Credit Agreement and signed by a Financial Officer of the Borrower.
(g) The Agents shall have received all fees payable thereto or to any Lender (including any agent and arranger in respect of this Facility) on or prior to the Amendment Effective Date and, to the extent invoiced, all other amounts due and payable pursuant to the Credit Documents on or prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxx Xxxxx LLP) required to be reimbursed or paid by the Credit Parties hereunder or under any Credit Document.
(h) The Administrative Agent and the Continuing Lenders shall have received at least three (3) Business 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 without limitation, the Patriot Act that has been requested not less than five (5) Business Days prior to the Amendment Effective Date. The Administrative Agent shall notify the Borrower and the Lenders of the Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbinding.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (EP Energy Corp)
Conditions to Effectiveness. Section 1 of this Amendment This Agreement shall become effective only upon on the satisfaction of all date that each of the following conditions precedent are satisfied or waived:
(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to a) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for shall have received each Lender) of the following, eacheach of which shall be originals, facsimiles or PDFs delivered by electronic mail unless otherwise notedspecified, each properly executed by a Responsible Officer of the signing Credit Party, each dated the First Amendment Effective Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement and the Guarantee Agreement; and
(ii) a Revolving Loan Note executed by the Borrower in favor of each Lender that has requested a Revolving Loan Note at least three Business Days prior to the Closing Date.
(b) The Administrative Agent and the Lenders shall have received (i) the Historical Financial Statements, (ii) the Historical Statutory Statements and (iii) an annual budget and one-year financial projections for Parent in a form reasonably acceptable to the Administrative Agent.
(c) The Administrative Agent shall have received:
1. Copies (i) copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent body of each Credit Party authorizing the Transactions to which such Credit Party is a party, certified as of the Closing Date by a Responsible Officer of such Credit Party;
(ii) a certificate of a Responsible Officer of each Credit Party certifying the names and true signatures of the officers of such Credit Party authorized to execute, deliver and perform, as applicable, this Agreement and all amendments other Loan Documents to be delivered by such Credit Party hereunder;
(iii) the Organizational Documents articles or certificate of Company executed incorporation or equivalent document of each Credit Party as in effect on or after February 19, 2008, in each casethe Closing Date, certified by the Secretary of State (or similar, applicable Governmental Authority) of Delaware or, if such document is its state of incorporation or organization as of a type that may not be so certifiedrecent date;
(iv) the by-laws or equivalent document of each Credit Party as in effect on the Closing Date, certified by a Responsible Officer of such Credit Party as of the secretary or similar officer Closing Date;
(v) to the extent such concept is applicable in such jurisdiction, a certificate of Company, together with a good standing certificate or equivalent document for each Credit Party from the Secretary of State (or similar, applicable Governmental Authority) of its state of incorporation or organization as of a recent date; and
(vi) a certificate of compliance for each Insurance Subsidiary from the applicable Department as of a recent date.
(d) The Administrative Agent shall have received written opinions, reasonably acceptable to the Administrative Agent in form and substance, (addressed to the Administrative Agent and the Lenders and dated the Closing Date) from (i) Debevoise & Xxxxxxxx, LLP, counsel for the Credit Parties and (ii) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Credit Parties.
(e) The Administrative Agent and the Lead Arrangers shall have been paid all costs, fees and expenses (including, without limitation, Attorney Costs of the State Administrative Agent and the Lead Arrangers) to the extent then due and payable to the Administrative Agent or the Lead Arrangers, including those fees payable pursuant to the Engagement Letter (and with respect to expenses of Delaware, each dated a recent date the Lead Arrangers (other than Attorney Costs) limited to those expenses provided for in the Engagement Letter and (except in the case of fees) to the extent invoiced to the Borrower no later than three Business Days prior to the First Amendment Effective Closing Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. (f) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to certificate signed by a Responsible Officer of the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counselBorrower, dated as of the First Amendment Effective DateClosing Date certifying that each of the conditions precedent specified in clauses (g), (i) and setting forth (j) of this Section 4.01 have been satisfied and (ii) a solvency certificate executed by an authorized representative of the matters as Administrative Agent acting on behalf Borrower, substantially in the form of Lenders may reasonably request.Exhibit H.
E. On or before the First Amendment Effective Date, all corporate (g) All governmental and other proceedings taken or to be taken regulatory authorizations and third party approvals necessary in connection with (i) the transactions financing contemplated hereby and all documents incidental thereto (ii) the continuing operation of the Credit Parties and their Subsidiaries, in each case, shall have been obtained and be in full force and effect; except, with respect to clause (ii) only, where failure to obtain such authorizations or approvals would not previously found acceptable have a Material Adverse Effect.
(h) Each Credit Party shall have provided the documentation and other information to the Administrative Agent as they reasonably determine are required by Administrative Agentbank regulatory authorities under applicable “know-your-customer” and Anti-Money Laundering Laws, acting on behalf including the Patriot Act, at least five Business Days prior to the Closing Date.
(i) There will not exist (pro forma for the financing hereunder) any “event of Lenders, default” under the Existing Debt or any other Material Indebtedness of Parent or its Subsidiaries.
(j) All of the representations and its counsel warranties contained herein or in any Loan Document by the Borrower and each Guarantor shall be satisfactory true and correct in form all material respects on the Closing Date to the same extent as though made on and substance as of that date, except to Administrative Agent the extent such representations and warranties specifically relate to an earlier date, in which case such counsel, representations and Administrative Agent and such counsel warranties shall have received been true and correct in all such counterpart originals or certified copies material respects on and as of such documents as Administrative Agent may reasonably requestearlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon the Agreement is subject to satisfaction of all each of the following conditions precedent conditions:
(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. a) On or before the First Amendment Effective Date, Company the Borrower shall deliver have delivered to the Lenders (or to the Administrative Agent for Lenders with sufficient copies, originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies (i) Certified copies of all amendments to the Organizational Documents its Certificate of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of CompanyIncorporation, together with a good standing certificate from the Secretary of State of the State jurisdiction of Delawareits incorporation, each to be dated a recent date prior to the First Amendment Effective Date;
2. (ii) Copies of its Bylaws, certified as of the Effective Date by its corporate secretary or an assistant secretary;
(iii) Resolutions of its Board board of Directors directors, directly or indirectly, approving and authorizing the execution, delivery, delivery and performance of this AmendmentAgreement and any other documents, instruments and certificates required to be executed by the Pledge Agreement Amendment (as defined below) Borrower in connection herewith and, directly or indirectly, approving and authorizing the Deed incurrence of Trustthe Loans, each certified as of the First Amendment Effective Date by the its corporate secretary or similar officer an assistant secretary as being in full force and effect without modification or amendment;
3. (iv) Signature and incumbency certificates of its officers with respect to the Persons executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; andAgreement;
4. (v) Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent Agreement; and
(the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (ivi) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or Such other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in as the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company (b) The Borrower shall pay have paid all fees and other amounts due and payable to each Lender executing this Amendment the Administrative Agent and the Lenders on or before the close Effective Date and for which invoices have been received by the Borrower reasonably in advance of business the Effective Date.
(San Francisco timec) The Administrative Agent shall have received an originally executed copy of the favorable written opinions of E. Rxxxxx Xxxxxx, Esq., Executive Vice President and General Counsel of the Borrower and Jxxxx X. Xxxxxxx, Esq., Executive Counsel of the Borrower, each dated as of the Effective Date and substantially in the form of Exhibits B and C annexed hereto; the Borrower hereby expressly instructs such counsel to prepare such opinion and deliver it to the Lenders for their benefit and such opinion shall contain a statement to that effect.
(d) The Administrative Agent shall have received an originally executed copy of the favorable written opinion of Dxxxx Xxxx & Wxxxxxxx LLP, special counsel to the Agents, dated as of the Effective Date, substantially in the form of Exhibit D annexed hereto.
(e) As of the Effective Date:
(i) The representations and warranties contained herein shall be true, correct and complete in all material respects on February 26and as of the Effective Date to the same extent as though made on and as of that date, 2009except that the representations and warranties need not be true and correct to the extent that changes in the facts and conditions on which such representations and warranties are based are required or permitted under this Agreement (provided that if any such representation or warranty is qualified by “materially”, “Material Adverse Effect” or a similar term, such representation and warranty (as so qualified) shall be true and correct in all respects);
(ii) No event shall have occurred and be continuing or would result from the effectiveness of this Agreement which would constitute (a) an amendment fee equal to 1.0% Event of Default or (b) a Potential Event of Default.
(f) To the extent such Lender’s Revolving Loan Exposuredocumentation and information has been requested by the Lenders, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. The Administrative Agent shall promptly notify the Borrower, the Lenders and the Administrative Agent of the satisfaction of the conditions set forth in this Section 3.01, and such notice shall be conclusive and binding on all parties hereto.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date on which each of the following conditions precedent is satisfied:
(a) The Administrative Agent’s receipt of the date following, each of satisfaction which shall be originals or facsimiles or electronic copies (and, to the extent requested by the Administrative Agent, followed promptly by originals) unless otherwise specified:
(1) counterparts of such conditions being referred this Amendment executed by each of the Loan Parties; and
(2) a Term B-1 Note executed by the Borrower in favor of each Term B-1 Lender requesting a Term B-1 Note at least two (2) Business Days prior to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment No. 1 Effective Date, Company shall deliver to Lenders if any.
(or to b) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) Agent’s receipt of the following, eacheach of which shall be originals or facsimiles or electronic copies (and, to the extent requested by the Administrative Agent, followed promptly by originals) unless otherwise noted, dated the First Amendment Effective Date:specified;
1. Copies of all amendments (A) a favorable written opinion (addressed to the Organizational Documents Administrative Agent and the Lenders) of Company executed on Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Young Xxxxxxx Stargatt & Xxxxxx, LLP, local counsel to the Borrower and the Guarantors in the state of Delaware;
(2) (i) copies of the certificate of formation, certificate of incorporation, certificate of organization, operating agreement, articles of incorporation, memorandum and articles of association and bylaws, as applicable (or after February 19comparable organizational documents) of the Borrower and the Guarantors and, 2008, in each caseto the extent applicable, certified by the Secretary as of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date by the appropriate governmental official (or a representation that such documents have not been amended since the Escrow Release Date); (ii) incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party as of the Amendment No. 1 Effective Date and prior to the First Amendment Effective Date;
2. Resolutions funding of its Board the U.S. Term B-1 Loans; (iii) resolutions of Directors the board of directors or similar governing body of the Loan Parties approving and authorizing the execution, delivery, delivery and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed other Loan Documents to which such Loan Party is a party as of Trustthe Amendment No. 1 Effective Date and prior to the funding of the U.S. Term B-1 Loans, certified as of the First Amendment No. 1 Effective Date by the secretary or similar officer such Loan Party as being in full force and effect without modification or amendment;
3. Signature ; and incumbency (iv) copies of the certificates of good standing or the equivalent (if any) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its officers executing this Amendmentformation, incorporation or organization, in each case dated a recent date prior to the Pledge Agreement Amendment and the Deed of TrustNo. 1 Effective Date; and
4(3) a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in Section 2.16(a)(v) of the Loan Agreement with respect to the U.S. Term B-1 Loans and in paragraphs (g) and (h) of this Section 3 as of the Amendment No. Executed copies 1 Effective Date. (c) (i) $750,000,000 of the existing U.S. Term B Loans shall have been repaid prior to the effectiveness of this Amendment and the First Amendment Borrower shall have delivered a prepayment notice with respect to Pledge and Security Agreement dated such repayment as required by Section 2.8(a)(i) of the Loan Agreement; provided that the parties hereto agree that such prepayment notice may be delivered by 1:00 p.m., New York City time, one Business Day before the date hereof between Company, its Subsidiaries of the proposed prepayment and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates remainder of the existing U.S. Term B Loans shall be accompanied by irrevocable undated stock powers, duly endorsed in blank repaid with the proceeds of the U.S. Term B-1 Loans substantially simultaneously with effectiveness of this Amendment and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent Borrower shall have received cover sheets or other documents or instruments delivered a prepayment notice with respect to such repayment as required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as by Section 2.8(a)(i) of the First Amendment Effective DateLoan Agreement; provided that the parties hereto agree that such prepayment notice may be delivered by 1:00 p.m., and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or New York City time, one Business Day before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with date of the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestproposed repayment.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective as of the date hereof only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. (a) The Agent shall have received each of the following, each in form and substance satisfactory to Agent, in its sole discretion, and, where applicable, each duly executed by each party thereto (each of which shall be deemed to constitute a “Loan Document” pursuant to the Credit Agreement):
i. this Amendment or counterparts hereof;
ii. the Notes to the order of the Banks to the extent requested by any Bank pursuant to Section 2.18 of the Credit Agreement;
iii. certified copies of the resolutions of the Board of Directors of the Borrower approving this Amendment and each Note delivered in connection herewith, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each such Loan Document;
iv. a certificate of the secretary or an assistant secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and each Note delivered in connection herewith and the other documents to be delivered by the Borrower hereunder;
v. a certificate of a Responsible Officer stating the respective ratings by each of S&P and Xxxxx’x of the senior unsecured long-term debt of the Borrower as in effect on the First Amendment Effective Date;
vi. a favorable opinion of Xxxxx X. Xxxxxxxxx, Assistant Secretary and Senior Director for the Borrower, in form and substance reasonably acceptable to the Agent; and
vii. a favorable opinion of Xxxxx Xxxxx, LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Agent.
(b) On or before the First Amendment Effective Date, Company the following statements shall deliver to Lenders (or to Administrative be true and the Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise notedshall have received a certificate signed by a Responsible Officer, dated the First Amendment Effective Date, stating that:
1. Copies of all amendments to i. the Organizational Documents of Company executed on or after February 19, 2008, representations and warranties contained in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State Section 4.01 of the State of DelawareCredit Agreement (other than those representations and warranties that expressly relate solely to a specific earlier date, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified which shall remain correct as of the First Amendment Effective Date by the secretary or similar officer as being in full force such earlier date) are correct on and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, ; and
ii. no event has occurred and setting forth the matters as Administrative Agent acting on behalf is continuing that constitutes a Default or an Event of Lenders may reasonably requestDefault.
E. On or before (c) All accrued fees and reasonable out-of-pocket expenses of the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel Joint Lead Arrangers shall have received all such counterpart originals or certified copies been paid (including the reasonable fees and expenses of such documents as Administrative Agent may reasonably requestcounsel to the Joint Lead Arrangers for which invoices have been submitted).
F. Company (d) The Borrower shall pay have paid all accrued fees and reasonable out-of-pocket expenses of the Agent (including the reasonable fees and expenses of counsel to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan ExposureAgent for which invoices have been submitted).
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (Halliburton Co)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon the Second Incremental Loan Assumption Agreement and the Incremental Loan Commitments provided thereunder are subject to satisfaction of all of the following conditions precedent conditions:
(a) The Administrative Agent shall have received a copy of the Second Incremental Loan Assumption Agreement, duly executed and delivered by each of the parties thereto.
(b) The date specified in the Incremental Loan Commitment Request contained in the Second Incremental Loan Assumption Agreement on which the Incremental Loan Commitments are requested to become effective shall have occurred.
(c) The representations and warranties set forth in Article III of satisfaction the Credit Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the Incremental Loan Closing 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 conditions being referred to herein as earlier date).
(d) At the “First Amendment Effective Date”):time of and immediately after the making of the Other Loans, no Default or Event of Default shall have occurred and be continuing.
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to e) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) Xxxxxx & Xxxxxxx, LLP, counsel for Lenders with sufficient originally executed copiesHoldings and the Borrower, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments in form and substance satisfactory to the Organizational Documents of Company executed on or after February 19Administrative Agent, 2008and (ii) Holland & Xxxx LLP, local counsel for Holdings and the Borrower, in form and substance satisfactory to the Administrative Agent, in each case, certified by (A) dated the Secretary of State of Delaware orIncremental Loan Closing Date, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior (B) addressed to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving Administrative Agent and authorizing the execution, deliveryLenders, and performance of this Amendment, (C) covering such matters relating to the Pledge Agreement Amendment (as defined below) Loan Documents and the Deed of TrustIncremental Loan Commitments as the Administrative Agent shall reasonably request, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment Holdings and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment Borrower hereby request such counsel to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)deliver such opinions.
B. (f) The Administrative Agent shall have received (i) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Incremental Loan Closing Date certifying (A) that, except as attached thereto, there have been no changes to the organizational documents of any Loan Party since the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly completed amendment adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to UCC financing statementwhich such Person is a party and, in the case of the Borrower, the borrowings pursuant to the Incremental Loan Commitments, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection with the Second Incremental Loan Assumption Agreement on behalf of such Loan Party; and (ii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above.
(i) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Incremental Loan Closing Date, including reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement or under any other Loan Document, including the invoiced fees, charges and disbursements of Proskauer Rose LLP in connection with the preparation, negotiation, execution, delivery and implementation of (x) the Second Incremental Loan Assumption Agreement, the Credit Agreement Amendment (as defined below), and all documents and instruments entered into or delivered in connection therewith or pursuant thereto, (y) the Memorandum of Agreement (as defined below), and (z) to the extent required under Section 3(j) below, any additional or replacement title insurance or any endorsements, coinsurance and reinsurance (the agreements, documents and instruments referred to in clauses (x), (y) and (z) above, collectively, the “Incremental Loan Commitment Documents”), (ii) updated schedules Xxxxxxx Xxxx & Xxxxx LLP, counsel to the Pledge AgreementIncremental Lenders, shall have received all invoiced fees, charges and disbursements incurred by such counsel in connection with the review and negotiation of the Incremental Loan Commitment Documents in an amount not to exceed $20,000 in the aggregate, and (iii) certificates the Incremental Lenders party to the Second Incremental Loan Assumption Agreement shall have received all invoiced fees, charges and disbursements incurred by such Incremental Lenders (which certificates shall be accompanied by irrevocable undated stock powersA) owing to Engineering Consultant Xxxx Xxxxx in an amount not to exceed $9,000 in the aggregate, duly endorsed and (B) in blank and otherwise satisfactory respect of other out-of-pocket expenditures in form and substance an amount not to Administrative Agent), exceed $7,500 in each case reflecting the recent name change of Companyaggregate.
C. (h) All requisite Governmental Authorities and third parties shall have approved or consented to the transactions contemplated by either the Second Incremental Loan Assumption Agreement or the Credit Agreement Amendment to the extent required and there is no litigation, governmental, administrative or judicial action, actual or threatened in writing, that could reasonably be expected to restrain, prevent or impose burdensome conditions on the transactions contemplated by either the Second Incremental Loan Assumption Agreement or the Credit Agreement Amendment.
(i) The Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property a memorandum of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel, dated as pursuant to which record notice will be provided of the First Second Incremental Loan Assumption Agreement, the Credit Agreement Amendment Effective Dateand the transactions contemplated thereby, duly executed and delivered by the Borrower and the Collateral Agent (the “Memorandum of Agreement”).
(j) (i) Chicago Title Insurance Company shall have issued (or executed and delivered to the Collateral Agent an irrevocable commitment to issue) in favor of the Collateral Agent, (A) such additional and/or replacement title insurance in an amount equal to (when combined with the amount of the original title insurance remaining in place) the aggregate principal amount of the Loans outstanding after giving effect to the proposed Other Loans, and setting forth (B) such endorsements, coinsurance and reinsurance as may be reasonably requested by the matters Collateral Agent or any Lender (including any Lender that is not an Incremental Lender), insuring such amended, amended and restated or otherwise modified Borrower Mortgage as Administrative Agent acting a first lien on behalf the Mortgaged Property (as defined therein), subject to any Liens permitted by Section 6.02 of the Credit Agreement and otherwise no less favorable to the Lenders may reasonably request.
E. On than the original title insurance issued on the Closing Date (with such changes as are necessary to comply with customary title insurance practices), and (ii) such title insurance company (or before the First Amendment Effective Date, agent therefor) shall have received all corporate fees (including recordation and filing fees) and other proceedings taken or to be taken amounts payable in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory matters specified in form and substance to clause (i) above.
(k) The Administrative Agent and such counsel, and Administrative Agent and such counsel each Lender shall have received all such counterpart originals or certified copies of such documents as updated UCC lien and judgment searches with respect to the Borrower and each Guarantor.
(l) The Administrative Agent may reasonably requestshall have received a fully-executed copy of the Second Amendment to Credit Agreement, Waiver and Collateral Agent Consent, in the form of Exhibit A attached hereto (the “Credit Agreement Amendment”), and immediately prior and concurrently with the effectiveness of the Second Incremental Loan Assumption Agreement and the Incremental Loan Commitments, the Credit Agreement Amendment shall be in full force and effect.
F. Company (m) The Administrative Agent shall pay have received a duly-completed Borrowing Request with respect to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal Incremental Loans to 1.0% of such Lender’s Revolving be made pursuant to the Incremental Loan ExposureCommitments hereunder.
Appears in 1 contract
Samples: Second Incremental Loan Assumption Agreement (Rentech Inc /Co/)
Conditions to Effectiveness. Section 1 of this 3.1. This Amendment shall become effective only upon on the satisfaction of all date (the “Amendment No. 1 Effective Date”) on which:
(a) The Administrative Agent (or its counsel) shall have received from (i) the Administrative Agent, (ii) the Additional Initial B-1 Euro Term Lender, (ii) the Additional Initial B-1 Dollar Term Lender, (iii) the Continuing Term Lenders, (iv) Lenders constituting the Required Lenders (as defined in Exhibit A hereto) as of the following conditions precedent Amendment No. 1 Effective Date after giving effect to the incurrence of the Initial B-1 Euro Term Loans and Initial B-1 Dollar Term Loans and the prepayment of the Initial Euro Term Loans and Initial Dollar Term Loans, and (v) each Loan Party, (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to the Administrative Agent (which may include a telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received a customary written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 1 Effective Date) of Xxxxxxx Xxxxxxx & Xxxxxxxx, New York counsel for the Loan Parties. Each of the Borrower, Holdings and the Administrative Agent hereby instruct such counsel to deliver such legal opinion.
(c) The Administrative Agent shall have received such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates (or a representation that such Responsible Officers are the same as those whose signature and incumbency certificates were delivered to the Administrative Agent on the Closing Date), certificates of incorporation (or a representation that such certificates have not been amended since the Closing Date) and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party on the Amendment No. 1 Effective Date.
(d) The Borrower shall have paid to the Administrative Agent all fees, if applicable, and expenses due to the Administrative Agent and the Amendment No. 1 Arranger, as separately agreed in writing, on the Amendment No. 1 Effective Date, to the extent such fees and/or expenses are invoiced at least one business day prior to the Closing Date. All reasonable costs and expenses (including, without limitation, the reasonable fees, charges and disbursements of counsel for the Administrative Agent) of the Administrative Agent and the Amendment No. 1 Arranger in connection with this Amendment and the transactions contemplated hereby shall have been paid as separately agreed in writing, to the extent invoiced at least one business day prior to the Closing Date.
(e) The representations and warranties of each Loan Party set forth in Article V 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 of satisfaction this Amendment with the same effect as though made on and as of such conditions being referred date, except to herein 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; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of this Amendment or on such earlier date, as the “First case may be.
(f) At the time of and immediately after giving effect to this Amendment, no Default or Event of Default shall exist or would result from this Amendment or from the application of the proceeds therefrom.
(g) The Administrative Agent shall have received a certificate, dated the Amendment No. 1 Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (e) and (f) of this Section 3.1.
(h) The Administrative Agent shall have received a Committed Loan Notice with respect to the Initial B-1 Euro Term Loans and the Initial B-1 Dollar Term Loans to be made on the Amendment No. 1 Effective Date at the Administrative Agent’s Office at least three Business Days prior to the Amendment No. 1 Effective Date (or in each case, such shorter notice as is approved by the Administrative Agent in its reasonable discretion), and such Committed Loan Notice shall otherwise meet the requirements set forth in Section 2.02 of the Credit Agreement.
(i) The Administrative Agent shall have received a prepayment notice with respect to the Initial Euro Term Loans and the Initial Dollar Term Loans to be made on the Amendment No. 1 Effective Date at the Administrative Agent’s Office at least three Business Days prior to the Amendment No. 1 Effective Date (or in each case, such shorter notice as is approved by the Administrative Agent in its reasonable discretion), and such prepayment notice shall otherwise meet the requirements set forth in Section 2.05 of the Credit Agreement.
(j) The Borrower shall have paid to the Administrative Agent all accrued and unpaid interest on the Initial Euro Term Loans to, but not including, the Amendment No. 1 Effective Date”):.
A. On or before (k) The Borrower shall have paid to the First Administrative Agent all accrued and unpaid interest on the Initial Dollar Term Loans to, but not including, the Amendment No. 1 Effective Date.
(l) The Administrative Agent shall have received, no later than three Business Days in advance of the Amendment No. 1 Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copiesi) all documentation and other information about the Loan Parties that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, where appropriateincluding without limitation the Patriot Act and (ii) if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, for each Lendera Beneficial Ownership Certification (as defined in Exhibit A hereto) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments in relation to the Organizational Documents of Company executed on or after February 19, 2008Borrower, in each case, certified by to the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date extent reasonably requested in writing at least seven Business Days prior to the First Amendment No. 1 Effective Date;
2. Resolutions Date by the Additional Initial B-1 Euro Term Lender or the Additional Initial B-1 Dollar Term Lender through the Administrative Agent (provided that, upon the execution and delivery by such Lender of its Board of Directors approving and authorizing the execution, delivery, and performance of signature page to this Amendment, the Pledge Agreement Amendment condition set forth in this clause (as defined belowl) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment shall be deemed to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”be satisfied).
B. (m) The Administrative Agent shall have received the results of a recent Lien search in each of the jurisdictions in which Uniform Commercial Code financing statements, or other filings or recordations should be made to evidence or perfect security interests in the Collateral, and such search shall reveal no Liens on any of the Collateral, except for Liens permitted by Section 7.01 of the Credit Agreement or discharged on or prior to the Amendment No. 1 Effective Date pursuant to documentation reasonably satisfactory to the Administrative Agent.
(n) With respect to each Mortgaged Property, the Collateral Agent shall have received a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination, and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency to be a special flood hazard area, shall have received (i) a notice about special flood hazard area status and flood disaster assistance duly completed amendment to UCC financing statement, executed by the Borrower and (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied evidence of flood insurance as required by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as Section 6.07 of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably requestCredit Agreement.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Avantor, Inc.)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon is subject to the satisfaction of all or waiver, on or prior to April 24, 2015, of the following conditions precedent (the date of satisfaction of on which all such conditions being referred to herein as are satisfied or waived, the “First Amendment Effective Date”):
A. (a) The Administrative Agent (or its counsel) shall have received from each Loan Party and each Lender either (i) a counterpart of this Agreement signed on behalf of such parties or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such parties have signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received reimbursement of all costs and expenses required to be paid by the Loan Parties in connection with the transactions contemplated hereby.
(c) The representations and warranties set forth in Section 5 shall be true and correct, and the Administrative Agent shall have received a certificate to that effect dated as of the Amendment Effective Date and executed by a Responsible Officer of Holdings.
(d) The Administrative Agent and its counsel shall have received executed copies of favorable written opinions of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Loan Parties, and each local counsel listed on Exhibit C, in each case, in form and substance reasonably satisfactory to the Administrative Agent and its counsel, dated as of the Amendment Effective Date.
(e) On or before the First Amendment Effective Date, Company each Loan Party shall deliver or cause to Lenders (or be delivered to the Administrative Agent for and each of the Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies (i) Certified copies of all amendments to the Organizational Documents certificate of Company executed on incorporation, organization or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Companyformation, together with a good standing certificate, certificate of status or certificate of compliance (as applicable) from the Secretary applicable Governmental Authority of State its jurisdiction of the State of Delawareincorporation, organization or formation, each dated a recent date prior to the First Amendment Effective Date (or, in lieu of such certificate of incorporation, organization or formation, a certification by a Responsible Officer that there has been no change to such certificate of incorporation, organization or formation since the most recent copy delivered to the Administrative Agent, together with a good standing certificate, certificate of status or certificate of compliance (as applicable) from the applicable Governmental Authority of its jurisdiction of incorporation, organization or formation dated a recent date prior to the Amendment Effective Date);
2. Resolutions (ii) Copies of its Board of Directors approving and authorizing the executionOrganizational Documents, delivery, and performance of this Amendment, the Pledge Agreement Amendment other than such Organizational Documents required to be delivered under clause (as defined belowi) and the Deed of Trustabove, certified as of the First Amendment Effective Date by the its corporate secretary or an assistant secretary (or, in lieu of such Organizational Documents, a certification by a Responsible Officer that there has been no change to such Organizational Documents since the most recent copy delivered to the Administrative Agent);
(iii) A certification by a Responsible Officer, certified as of the Amendment Effective Date, that board resolutions or similar officer as being authorizing documents authorizing the execution, delivery and performance of this Amendment have been approved by the board of directors or similar governing body of each Loan Party and that such resolutions or documents are in full force and effect without modification or amendment;; and
3. Signature and (iv) An incumbency certificates certificate of its officers Responsible Officers executing this Amendment (or, in lieu of such incumbency certificate, a certification by a Responsible Officer that there has been no change to such incumbency certificate since the most recent copy delivered to the Administrative Agent).
(f) The Borrower shall have paid the fees required to be paid pursuant to Section 6 hereof.
(g) The Borrower shall have paid (i) to the Administrative Agent, for the account of each Continuing Lender, an upfront fee in an amount equal to the sum of (A) 0.15% of the amount of such Continuing Lender’s Commitment under the Credit Agreement as in effect immediately prior to the Amendment Effective Date and (B) 0.35% of the amount by which such Continuing Lender’s Commitment under the Credit Agreement as in effect on the Amendment Effective Date, as amended by this Amendment, exceeds such Continuing Lender’s Commitment under the Pledge Credit Agreement as in effect immediately prior to the Amendment Effective Date and (ii) to the Deed Administrative Agent, for the account of Trust; and
4. Executed copies each Additional Lender, an upfront fee in an amount equal to the sum of this Amendment and the First Amendment to Pledge and Security Agreement dated as (A) 0.15% of the date hereof between Companyamount of the Commitments assigned to such Additional Lender on the Amendment Effective Date and (B) 0.35% of the amount by which such Additional Lender’s Commitment under the Credit Agreement as in effect on the Amendment Effective Date, its Subsidiaries and Administrative Agent as amended by this Amendment, exceeds the amount of the Commitments assigned to such Additional Lender on the Amendment Effective Date; provided that the upfront fee to be paid to Bank of America, N.A. (“BofA”) shall be in an amount equal to 0.35% of the “Pledge amount of BofA’s Commitment under the Credit Agreement as in effect on the Amendment Effective Date, as amended by this Amendment”).
B. . The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to notify the Pledge Agreement, U.S. Borrower and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbinding.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon Agreement and the satisfaction Commitments and other obligations of all the Agent and the Banks hereunder are subject to the receipt by the Agent of the following conditions precedent (as to the documents described in paragraphs (a),(d), (e) and (f) below, in sufficient number of counterparts for delivery of a counterpart to each Bank and retention of one counterpart by the Agent): a duly executed counterpart of this Agreement signed by the Borrower, the Agent and the Required Banks; a duly executed Dollar Loan Note and a duly executed Foreign Currency Loan Note for the account of each Bank complying with the provisions of Section 2.03, and from each Bank which holds any of the Original Notes, such Original Notes(provided that, if any Bank is unable to deliver its Original Note on the Closing Date, such delivery on such date shall not be a condition to the effectiveness of this Agreement, and such Bank shall deliver such Original Note to the Borrower as soon as reasonably practicable after the Closing Date); a duly executed counterpart of each of the Pledge Agreements signed by the Borrower and each of the Initial Guarantors; an opinion letter (together with any opinions of local counsel relied on therein) of each of (i) Richard F. Treacy, Jr., Esq., General Counsel of the Borrower, and (ii) Cummings & Lockwood, counsel for the Borrower and the Guarantors, dated ax xx xxx Xxxxxxx Xxxx, substantially in the form of Exhibit B and coverixx xxxx addxxxxxxx matters relating to the transactions contemplated hereby as the Agent may reasonably request; an opinion of Jones, Day, Reavis & Pogue, special counsel for the Agent, dated as of the Closing Date, substantially in the form of Exhibit C and covering such xxxxtional xxxxxxs rxxxxxng to the transactions contemplated hereby as the Agent may reasonably request; a certificate (the date "Closing Certificate") substantially in the form of satisfaction Exhibit G), dated as of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Closing Date, Company shall deliver signed by a principal financial officer of the Borrower, to Lenders the effect that (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderi) no Default is in existence on the Closing Date and (ii) the followingrepresentations and warranties of the Borrower contained in Article IV are true in all material respects on and as of the Closing Date, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments except to the Organizational Documents extent any such representation or warranty relates to an earlier date; all documents which the Agent or any Bank may reasonably request relating to the existence of Company executed on the Borrower or after February 19any Guarantor, 2008the corporate authority for and the validity of this Agreement, the Notes, the Pledge Agreements, the Subsidiary Guaranty and the Contribution Agreement, and any other matters relevant hereto, all in form and substance satisfactory to the Agent, including, without limitation, certificates from the Borrower and each caseGuarantor substantially in the form of Exhibit H (the "Officer's Certificate"), certified signed by the Secretary or an Assistant Secretary of State the Borrower or the relevant Guarantor, certifying as to the names, true signatures and incumbency of Delaware orthe officer or officers of the Borrower or the Guarantor, if as the case may be, authorized to execute and deliver the Loan Documents on behalf of such document is entity, and certified copies for each such entity of the following items: (i) the Certificate of Incorporation, (ii) the Bylaws, (iii) a type that may not be so certified, certified by the secretary or similar officer certificate of Company, together with a good standing certificate from the Secretary of State of the State state of Delaware, each dated a recent date prior incorporation of such entity as to the First Amendment Effective Date;
2. Resolutions good standing of its the entity in such jurisdiction, and (iv) the action taken by the Board of Directors approving and of such entity authorizing the entity's execution, delivery, delivery and performance of the Loan Documents to which such entity is a party; (A) for the account of each Bank which executes this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009date hereof and which received a waiver fee pursuant to the Financial Covenant Waiver Agreement, an amendment fee in an amount equal to 1.00.10% of such Lender’s Revolving Loan Exposureits Commitment, (B) for the account of each Bank which executes this Agreement on or before the date hereof but which did not receive a waiver fee pursuant to the Financial Covenant Waiver Agreement, an amendment fee in an amount equal to 0.125% of its Commitment, and (C) for the account of the Agent, the fees payable on the Closing Date pursuant to the Arranger's Letter Agreement; the Subsidiary Guaranty, duly executed by each Initial Guarantor; and the Contribution Agreement, duly executed by each Initial Guarantor and the Borrower.
Appears in 1 contract
Conditions to Effectiveness. Section 1 This Amendment and the obligation of this Amendment each New Revolving Credit Lender shall become effective only upon on the satisfaction of all date (the “Amendment No. 1 Effective Date”) when each of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Datehave been satisfied:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined belowa) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. The Administrative Agent shall have received the following: (i) counterparts of this Amendment executed and delivered by a duly completed amendment to UCC financing statementauthorized officer of each of the Credit Parties, the New Revolving Credit Lenders, the L/C Issuer, the Swingline Lender, the Administrative Agent, the Collateral Agent and Lenders constituting the Required Lenders;
(ii) updated schedules a customary opinion of legal counsel from Ropes & Xxxx LLP, counsel to the Pledge Agreement, and Credit Parties; (iii) with respect to each Credit Party, copies of the Organization Documents of such Credit Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Responsible Officer of such Credit Party to be true and correct as of the Amendment No. 1 Effective Date; (iv) with respect to each Credit Party, such certificates or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of such Credit Party dated the Amendment No. 1 Effective Date 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 Credit Documents to which Credit Party is a party; and (which v) good standing certificates shall be accompanied by irrevocable undated stock powers, duly endorsed for each Credit Party as of a recent date in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Companyits state or organization or formation.
C. (b) The Administrative Agent shall have received cover sheets or other documents or instruments required a certificate of a Responsible Officer to be filed the effect that the representations and warranties set forth in order to create or perfect Liens in all intellectual property of Company Section 3 hereof are true and its Subsidiaries in the United Statescorrect.
D. Lenders (c) The Administrative Agent shall have received copies the results of one or more favorable written opinions of JonesUCC, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form tax and substance reasonably satisfactory to judgment lien searches.
(d) The Administrative Agent and its counselshall have received a notice of prepayment in full of all Term Loans outstanding under the Existing Credit Agreement and, dated as prior to or substantially concurrently with the occurrence of the First Amendment No. 1 Effective Date, and setting forth the matters as Administrative Agent acting on behalf shall have received a prepayment of Lenders may reasonably requestall outstanding Term Loans equal to the outstanding principal amount of all outstanding Term Loans plus all accrued and unpaid interest thereon.
E. On (e) Prior to or before substantially concurrently with the First Amendment No. 1 Effective Date, the Borrower shall have paid an upfront fee to the Administrative Agent, for the ratable account of the New Revolving Credit Lenders equal to the sum of (x) 0.05% multiplied by the principal amount of such Lender’s New Revolving Credit Commitment on the Amendment No. 1 Effective Date that is not in excess of such Lender’s “Revolving Credit Commitment” under the Existing Credit Agreement immediately prior to the Amendment No. 1 Effective Date and (y) 0.25% multiplied by the principal amount of such Lender’s New Revolving Credit Commitment that is in excess of the amount of such Lender’s New Revolving Credit Commitment that is subject to the foregoing subclause (x).
(f) Prior to or substantially concurrently with the occurrence of the Amendment No. 1 Effective Date, the Borrower shall have paid all costs and expenses owing to the Amendment No. 1 Lead Arrangers that are due and payable on or prior to the Amendment No. 1 Effective Date and, to the extent invoiced at least two Business Days prior to the Amendment No. 1 Effective Date, all corporate reasonable costs and other proceedings taken or to be taken expenses of the Administrative Agent and the Amendment No. 1 Lead Arrangers in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestthis Amendment.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon the satisfaction of all of the following conditions precedent (on the date of satisfaction of such conditions being referred to herein as (the “First Amendment Effective Date”):) on which each of the following conditions is satisfied or waived:
A. On (a) The Administrative Agent (or before its counsel) shall have received:
(1) from Lenders constituting the Majority Lenders and each of the other parties hereto either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission or “.PDF” of a signed signature page of this Amendment) that such party has consented in writing to amend the Credit Agreement pursuant to this Amendment;
(2) from Lenders constituting the Majority Lenders party to the EnergySolutions Credit Agreement and each of the other parties thereto either (i) a counterpart of EnergySolutions Amendment No. 1 signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission or “.PDF” of a signed signature page of EnergySolutions Amendment No. 1) that such party has consented in writing to amend the Credit Agreement pursuant to EnergySolutions Amendment No. 1;
(b) All corporate and other proceedings, if any, taken or to be taken in connection with this Amendment and all documents incidental thereto, whether or not referred to herein, shall be satisfactory in form and substance to the Administrative Agent and its counsel;
(c) The Administrative Agent shall have received all reasonable costs, fees, expenses and other amounts due and payable on or prior to the First Amendment Effective Date, Company shall deliver to Lenders (including reimbursement or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies payment of all amendments reasonable out-of-pocket expenses (including the reasonable fees, disbursements and other charges of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent) required to be reimbursed or paid by EnergySolutions, and for which invoices have been presented to EnergySolutions on or prior to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date business day prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving (d) All representations and authorizing the execution, delivery, warranties set forth in Section 2 hereof shall be true and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified correct as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendmentsuch date;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. e) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules for the account of each Lender who executes and delivers to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment prior to 12:00 noon Eastern Standard Time on or before the close of business (San Francisco time) on February 26January 13, 2009, 2010 an amendment fee equal to 1.00.25% of the aggregate principal amount of Loans under the Credit Agreement held by such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. The effectiveness of Section 1 of this Amendment Agreement and the obligation of the Term Loan Lenders to make their Term Loans hereunder shall become effective only upon be subject to the satisfaction of all of the following conditions precedent (the date upon which Section 1 of satisfaction of such conditions being referred to herein as this Agreement become effective, the “First Sixth Amendment Effective Date”):
A. On (a) The Administrative Agent and the Fronting Term Loan Lender shall have received each of the following, each dated the Sixth Amendment Effective Date unless otherwise indicated or before agreed to by the First Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) from the Administrative Agent, each Loan Party and the Fronting Term Loan Lender which is party hereto, duly signed counterparts of this Agreement and from each Cashless Option Lender a duly signed Consent (which shall be deemed part of this Agreement);
(ii) a favorable written opinion of each of Xxxxx Day LLP, counsel to the Borrower and each Guarantor, addressed to the Administrative Agent, Collateral Agent and each Lender signatory hereto, dated the Sixth Amendment Effective Date;
(iii) a “Life-of-Loan” flood hazard determination notice for each real property encumbered by a Mortgage and if such real property is located in a special flood hazard area, (x) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and the applicable Loan Party and (y) evidence of flood insurance required by the Amended Credit Agreement in form and substance satisfactory to the Administrative Agent;
(iv) a notice (which notice must be received by the Administrative Agent (i) in the case of Eurocurrency Loans, by 11:00 a.m. three (3) Business Days prior to the Sixth Amendment Effective Date or (ii) in the case of ABR Loans, by 11:00 a.m. one (1) Business Day prior to the Sixth Amendment Effective Date) specifying the amount of the Term Loans to be borrowed, the Type of such Term Loans, the Interest Period (if applicable) and the proposed Borrowing Date; and
(v) a notice of prepayment by the Borrower of the Existing Term Loans as required by Section 3.4(a) of the Credit Agreement (which notice must be in a form and substance reasonably acceptable to the Administrative Agent and received by the Administrative Agent (i) in the case of Eurocurrency Loans, three (3) Business Days prior to the Sixth Amendment Effective Date or (ii) in the case of ABR Loans, one (1) Business Day prior to the Sixth Amendment Effective Date).
(b) the Term Loan Lenders shall have received all fees and other amounts due and payable under Section 6 of this Agreement on, or contemporaneously with, the Sixth Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008extent invoiced at least two Business Days prior to such date, in each case, certified by unless otherwise agreed between the Secretary of State of Delaware orBorrower and the Administrative Agent;
(c) The Administrative Agent, if such document is of a type the Fronting Term Loan Lender and any other Term Loan Lender that may not be so certifiedreasonably requests shall have received, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date at least three Business Days prior to the First Sixth Amendment Effective Date;, all documentation and other information about the Borrower and the other Loan Parties as shall have been reasonably requested in writing at least 10 Business Days prior to the Sixth Amendment Effective Date by the Administrative Agent, the Fronting Term Loan Lender or such other Term Loan Lender that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. The Administrative Agent, the Fronting Term Loan Lender and any other Term Loan Lender that reasonably requests shall have received at least three Business Days prior to the Sixth Amendment Effective Date a certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230 with respect to the Borrower as shall have been reasonably requested in writing at least 10 Business Days prior to the Sixth Amendment Effective Date.
2. Resolutions (d) the Administrative Agent shall have received (A) true and complete copies of its Board resolutions of Directors the board of directors of the Borrower and each Guarantor approving and authorizing the execution, delivery, delivery and performance of this AmendmentAgreement, the Pledge Agreement Amendment (as defined below) and the Deed performance of Trustthe Amended Credit Agreement, certified as of the First Sixth Amendment Effective Date by the a Responsible Officer, secretary or similar officer assistant secretary of the Borrower or such Guarantor, as applicable, as being in full force and effect without modification or amendment;
3. Signature amendment and incumbency certificates (B) good standing certificate (or the equivalent thereof) for each Loan Party reasonably requested by the Administrative Agent from its jurisdiction of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trustformation; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as (e) all of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed conditions in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as Section 5.2 of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably requestAmended Credit Agreement have been satisfied.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Hd Supply, Inc.)
Conditions to Effectiveness. (1) The amendments set forth in Section 1 of this Amendment 1.2 shall become effective only upon on the satisfaction of all of date (such date, if any, the “Effective Date”) that the following conditions precedent have been satisfied:
(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendera) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received from the Loan Parties and the Lenders constituting the Required Lenders either (i) a duly completed amendment counterpart of this Amendment signed on behalf of such party (or a consent to UCC financing statement, this Amendment in the form of Exhibit A hereto (a “Consent Form”)) or (ii) updated schedules written evidence satisfactory to the Pledge AgreementAdministrative Agent (which may include telecopy or electronic transmission (e.g. “pdf”) of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment or a Consent Form;
(b) the Administrative Agent, the Arranger (as defined in the Engagement Letter referred to below) and the Lenders shall have received all fees and expenses required to be paid or delivered by the Borrower to them on or prior to the Effective Date, including the (i) Consent Fee and (iiiii) certificates Arrangement Fee (which certificates shall be accompanied by irrevocable undated stock powersas defined in and payable pursuant to the Engagement Letter, duly endorsed in blank dated as of September 18, 2020, among the Borrower and otherwise satisfactory in form and substance to Administrative Agentthe Arranger (as defined therein), in each case reflecting );
(c) the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments an amount from the Borrower in cash, which amount shall be applied on the Effective Date to prepay 10.05% of the Term Loans held by each Lender that has not submitted a Consent Form prior to the Consent Deadline indicating its election to decline such prepayment (the “Fifth Amendment Effective Date Prepayment”), which such Fifth Amendment Effective Date Prepayment shall be deemed a voluntary prepayment pursuant to Section 3.4(a) of the Amended Credit Agreement and applied to the quarterly installments of principal required to be filed in order to create or perfect Liens in all intellectual property by Section 2.2(b) of Company and its Subsidiaries the Amended Credit Agreement in the United States.direct order of maturity beginning with the payment due on September 30, 2020; and
D. Lenders (d) the Administrative Agent shall have received copies a certificate of one or more favorable written opinions a Responsible Officer of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, the Borrower dated as of the First Amendment Effective Date, certifying that after giving effect to the amendments set forth in this Amendment, (i) no Default or Event of Default exists and setting forth is continuing or has resulted therefrom and (ii) all representations and warranties contained in Section 4 of the matters Amended Agreement and in the other Loan Documents are true and correct in all material respects on and as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies material respects as of such documents as Administrative Agent may reasonably requestearlier date.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Servicemaster Global Holdings Inc)
Conditions to Effectiveness. Section 1 of this This Third Amendment shall become effective only upon as of the satisfaction of all date when each of the following conditions precedent is satisfied:
(the date a) The Administrative Agent’s receipt of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies each of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware which shall be originals (or, if such document is of a type that may not be so certified, certified permitted by the secretary or similar officer of CompanyAdministrative Agent, together with a good standing certificate from the Secretary of State of the State of Delawaretelecopies), each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and each in form and substance satisfactory to the Administrative Agent (the “Pledge Agreement Amendment”).Agent:
B. Administrative Agent shall have received (i) counterparts of this Third Amendment, properly executed by a Responsible Officer of each of the Loan Parties, NSA REIT, Tranche E Lenders and the requisite Lenders;
(ii) a Note substantially in the form of Exhibit H-2 to the Credit Agreement issued in favor of each Tranche E Lender reflecting the aggregate principal amount of such Lender’s Tranche E Loan (collectively, the “New Notes”);
(iii) a certificate dated as of the date hereof signed by a duly completed amendment authorized officer of NSA REIT, the Borrower and each Guarantor (i) certifying and attaching the resolutions adopted by NSA REIT, the Borrower and each Guarantor’s board of directors or trustees (or other appropriate governing body or Persons) authorizing the transactions described herein and evidencing the due authorization, execution and delivery of this Third Amendment, the New Notes and each of the other Loan Documents to UCC financing statementwhich NSA REIT and such Loan Party is a party executed in connection with the Increase, (ii) updated schedules certifying that the organizational documents of NSA REIT, the Borrower and each Guarantor have not been amended, modified or rescinded since they were last furnished in writing to the Pledge AgreementAdministrative Agent, and remain in full force and effect as of the date hereof, (iii) certificates certifying that NSA REIT, the Borrower and each Guarantor is duly formed, validly existing and in good standing under the laws of such entity’s jurisdiction of organization, and that there is no pending or to such officer’s knowledge, threatened proceeding for dissolution, liquidation or other similar matter with respect to NSA REIT, the Borrower or any Guarantor, (iv) certifying that, immediately before and immediately after giving effect to the Increase, this Third Amendment and the Increasing Lender Agreements, (A) the representations and warranties made or deemed made by NSA REIT, the Borrower and each other Loan Party in the Loan Documents to which certificates any of them is a party, are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be accompanied true and correct in all respects) with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely 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) and except that for purposes hereof, the representations and warranties contained in Section 7.11 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Article IX of the Credit Agreement, (B) there has been no material adverse change in the business, assets, operations, condition (financial or otherwise) or properties of any of NSA REIT and the Loan Parties since the date of the financial statements most recently delivered to the Administrative Agent pursuant to the Credit Agreement, (C) after giving effect to the financing contemplated by irrevocable undated stock powersthis Third Amendment and the use of the proceeds of the loans to be funded on the Amendment Date, duly endorsed there shall not have occurred any event or condition that constitutes an “event of default” (howsoever defined) or that, with the giving of any notice, the passage of time, or both, would be an “event of default” under any of NSA REIT or the Loan Parties’ financial obligations (other than de minimis obligations) in blank existence on the Effective Date, (D) NSA REIT and otherwise satisfactory in form its Subsidiaries shall have received all approvals, consents and substance waivers, and shall have made or given all necessary filings and notices, as shall be required to consummate the transactions contemplated hereby without the occurrence of any material default under, material conflict with or material violation of (1) any Applicable Law or (2) any agreement, document or instrument to which NSA REIT or any Loan Party is a party or by which NSA REIT, any Loan Party or their properties are bound and (E) no Default or Event of Default exists;
(iv) to the extent requested by the Administrative Agent), information from the Borrower with respect to any outstanding Disqualified Stock;
(v) an Increasing Lender Agreement executed and delivered by each Tranche E Lender and the other parties thereto;
(vi) favorable opinions of counsel to NSA REIT and the Loan Parties acceptable to the Administrative Agent with respect to this Third Amendment and the Increase reflected herein and the New Notes;
(vii) to the extent required by the Administrative Agent or any Lender, updated W-9s and Beneficial Ownership Certification for NSA REIT and the Loan Parties as well as all documentation and other information required by the Administrative Agent and Lenders under applicable “know your customer” rules and regulations;
(viii) payment by the Borrower in immediately available funds of the fees payable pursuant to (x) the fee letter dated as of July 28, 2021, among KeyBank National Association, KeyBanc Capital Markets Inc. and the Borrower and (y) the fee letter dated as of August 2, 2021, among PNC Bank, National Association, PNC Capital Markets LLC and the Borrower, in each case reflecting relating to the recent name change of Company.Tranche E Loans, including without limitation the commitment fees payable to the Increase Lenders set forth in such fee letter, together with any and all other fees provided by the Credit Agreement; and
C. (ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United Statesreasonably may require.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (National Storage Affiliates Trust)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all of date (the “Amendment No. 1 Effective Date”) on which the following conditions precedent are satisfied (or waived by the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”Administrative Agent):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (a) The Administrative Agent (or to its counsel) shall have received from (i) each Continuing Term Lender, (ii) each other Specified Refinancing Term Lender (iii) the Administrative Agent for Lenders with sufficient originally executed copiesand (iv) each Credit Party, where appropriate, for each Lender(x) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies counterpart of this Amendment and signed on behalf of such party or (y) written evidence satisfactory to the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
B. (b) The Administrative Agent shall have received (i) such customary resolutions or other action of each Credit Party as the Administrative Agent may reasonably require evidencing the authority and capacity of each Responsible Officer thereof authorized to act as a duly completed amendment to UCC financing statement, Responsible Officer in connection with this Amendment and (ii) updated schedules with respect to Borrower and Holdings, such documents and certifications (including, without limitation, incumbency certificates, Organizational Documents and, if applicable, good standing certificates) as the Pledge AgreementAdministrative Agent may reasonably require to evidence that each of the Borrower and Holdings is duly organized or formed, and that each of the Borrower and Holdings is validly existing and in good standing and (iii) to the extent applicable in the relevant jurisdiction, bring down good standing certificates of each Credit Party dated as of a recent date.
(which certificates c) Holdings, the Borrower and each of the Subsidiary Guarantors shall be accompanied have provided the documentation and other information reasonably requested in writing at least ten (10) days prior to the Amendment No. 1 Effective Date by irrevocable undated stock powersthe Consenting Lenders as they reasonably determine is required by regulatory authorities in connection with applicable “know your customer” and anti-money-laundering rules and regulations, duly endorsed including, without limitation, the PATRIOT Act, in blank each case at least three (3) Business Days prior to the Amendment No. 1 Effective Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) The Borrower shall have paid to the Administrative Agent for the ratable account of the Lenders holding Existing Term Loans all accrued and otherwise satisfactory in form unpaid interest on such Existing Terms Loans to, but not including, the Amendment No. 1 Effective Date.
(e) All costs, fees, expenses (including without limitation legal fees and substance to Administrative Agentexpenses, title premiums, survey charges and recording taxes and fees), in each case reflecting solely to the recent name change extent required to be paid pursuant to Section 10.2 of Companythe Amended Credit Agreement, and other compensation separately agreed in writing to be payable to the Amendment No. 1 Arranger and the Administrative Agent shall have been paid to the extent due (and, in the case of expenses, invoiced in reasonable detail at least two Business Days prior to the Amendment No. 1 Effective Date).
C. (f) After giving effect to this Amendment, (A) the representations and warranties of the Borrower and each other Credit Party contained in SECTION 4 of the Credit Agreement, Article II hereunder and each other Credit Document are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 1 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date and (B) no Default shall exist, or would result immediately after giving effect to the provisions of this Amendment. A Responsible Officer of the Borrower shall have delivered a certificate certifying as to the matters set forth in clauses (A) and (B);
(g) The Administrative Agent shall have received cover sheets or other documents or instruments required an opinion of Cravath, Swaine & Xxxxx LLP, special New York counsel to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for CompanyCredit Parties, in form and substance reasonably satisfactory to the Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.No. 1
Appears in 1 contract
Samples: Term Loan and Guaranty Agreement (TerraForm Power, Inc.)
Conditions to Effectiveness. Section 1 of this This First Amendment shall become effective only as of the date set forth above upon the satisfaction of all of the following conditions precedent conditions:
(the date of satisfaction of such conditions being referred a) there shall exist no Default both immediately before and after giving effect to herein as the “this First Amendment Effective Date”):Amendment;
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderb) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment counterpart signature page to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powersthis First Amendment, duly endorsed in blank executed and otherwise satisfactory in form and substance to Administrative Agentdelivered by the Borrower, each Guarantor, the owners of the Capital Stock of the Borrower (the "Pledgors"), in each case reflecting the recent name change of Company.Majority Lenders and the Term A Lenders;
C. (c) the Administrative Agent shall have received cover sheets or other documents or instruments required a counterpart signature page to be filed in order to create or perfect Liens in all intellectual property of Company the Term A Reallocation Letter, duly executed and its Subsidiaries in delivered by the United States.Borrower, the Term A Lenders and the Nexstar Term A Lenders;
D. Lenders (d) the Administrative Agent shall have received copies a certified copy of one or more favorable written opinions the CCA Acquisition Documents, duly executed by the parties thereto (together with all exhibits and schedules thereto), and each of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, which shall be in form full force and substance reasonably satisfactory to Administrative Agent effect;
(e) the representations and its counsel, dated warranties set forth in this First Amendment shall be true and correct in all material respects as of the date of this First Amendment Effective Date(except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and setting correct in all material respects as of such earlier date and (2) that any representation or warranty that is qualified by "materiality" or "Material Adverse Effect" shall be true and correct in all respects);
(f) the Nexstar Credit Agreement shall be amended on substantially similar terms for the Nexstar Borrower as the terms set forth in this First Amendment;
(g) the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals a certificate of a Responsible Officer of the Borrower certifying (A) as to compliance with clauses (i) – (iii) of the proviso to Section 2.14(a) of the Credit Agreement and (B) and attaching the resolutions adopted by the Borrower approving or certified copies of such documents as consenting to the First Amendment;
(h) the Administrative Agent may reasonably request.
F. Company shall pay to have received a Term A Loan Note executed by the Borrower in favor of each Lender requesting a Term A Loan Note;
(i) the Administrative Agent shall have received, for the account of each existing Term B Lender timely executing this First Amendment prior to 3 p.m. on or before the close of business (San Francisco time) on February 26June 27, 20092013, an amendment fee equal to 1.0% five basis points (0.05%) of the aggregate Outstanding Amount of the Term B Loans of such Lender’s Revolving Loan Exposure; and
(j) the Borrower shall have paid all reasonable invoiced fees and expenses of the Administrative Agent's counsel, Xxxxxxxx PC, and the Administrative Agent shall have received evidence of payment of all other reasonable and documented out-of-pocket costs and expenses (including, without limitation, legal fees and expenses) that have been invoiced prior to the effective date of this First Amendment.
Appears in 1 contract
Conditions to Effectiveness. The effectiveness of each Supplemental Confirmation on the Effective Date for such Supplemental Confirmation shall be subject to: (i) the condition that the representations and warranties of Party B contained in Section 1 3(a) of the Agreement and in the Sales Agency Financing Agreement, and any certificate delivered pursuant to the Sales Agency Financing Agreement by Party B, be true and correct on such Effective Date as if made as of such Effective Date; (ii) the condition that the representations and warranties of KBCM contained in Section 3(a) of the Agreement be true and correct on such Effective Date as if made as of such Effective Date; (iii) the condition that Party B have delivered to KBCM an opinion of counsel (which may include internal counsel to Party B and which may, at Party B’s election, be an opinion of counsel required to be delivered pursuant to the Sales Agency Financing Agreement, provided such opinion of counsel satisfies the requirements hereof) dated on or prior to the first Trade Date for a Transaction hereunder with respect to matters set forth in Section 3(a)(ii) and Section 3(a)(v) of the Agreement (as if references therein to “this Amendment shall become effective only upon Agreement” were instead references to “this Master Confirmation”); (iv) the condition that Party B have performed all of the obligations required to be performed by it under the Sales Agency Financing Agreement on or prior to such Effective Date; (v) delivery by KBCM to Party B of a properly executed Internal Revenue Service Form W-9 or similar documentation establishing an exemption from backup withholding under the Internal Revenue Code of 1986, as amended; (vi) the satisfaction of all of the following conditions precedent set forth in Section 5.01 of the Sales Agency Financing Agreement (for purposes hereof, the date representation in Section 3(a)(iv) of satisfaction the Agreement shall, for avoidance of doubt, extend to this Master Confirmation and each Supplemental Confirmation); (vii) the non-occurrence of any event that would cause an Acceleration Event to be in effect upon the effectiveness of such conditions being referred Supplemental Confirmation; and (viii) delivery by Party B to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is KBCM of a type that may not be so certified, certified by the secretary properly executed Internal Revenue Service Form W-9 or similar officer documentation establishing an exemption from backup withholding under the Internal Revenue Code of Company1986, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)amended.
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Master Confirmation for Forward Stock Sale Transactions (DDR Corp)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment No. 2 Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Dateon which:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined belowa) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. The Administrative Agent shall have received from each party hereto either (i) a duly completed amendment counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to UCC financing statementthe Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each L/C Issuer on the Amendment No. 2 Effective Date, a written opinion of (i) Dxxxx Xxxx & Wxxxxxxx LLP, special New York counsel for the Loan Parties, (ii) updated schedules Rxxxxxxx, Xxxxxx & Finger. P.A., special Delaware counsel to the Pledge AgreementLoan Parties, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance general counsel to Administrative Agent)the Loan Parties, in each case reflecting (A) dated as of the recent name change of Company.
C. Amendment No. 2 Effective Date, (B) addressed to each L/C Issuer on the Amendment No. 2 Effective Date, the Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, and (C) in form and substance reasonably satisfactory to the Administrative Agent (it being agreed that opinions substantially in the form delivered on the Closing Date shall be deemed to be satisfactory to the Administrative Agent except that the opinion of special Delaware counsel need cover only the continued perfection of the Collateral).
(c) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (1), (2) and (3) below:
(1) a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent organizational documents, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party, or in the alternative (other than in the case of the Borrower), a certificate stating that such certificate or articles of incorporation or organization have not been amended since the Closing Date;
(2) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Amendment No. 2 Effective Date and certifying
(i) that attached thereto is a true and complete copy of the bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Amendment No. 2 Effective Date and at all times since a date prior to the date of the resolutions described in clause (ii) below or in the alternative (other than in the case of the Borrower), certifying that such bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) have not been amended since the Closing Date,
(ii) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party (or its managing general partner, managing member or equivalent) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party or, in the alternative, certifying that such resolutions have not been modified, rescinded or amended since the Closing Date and are in full force and effect on the Amendment No. 2 Effective Date,
(iii) that the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation, certificate of formation or other equivalent organizational documents of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (1) above,
(iv) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party;
(3) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (2) above.
(d) All fees and expenses due to the Administrative Agent, the Amendment No. 2 Arrangers and the Lenders required to be paid on the Amendment No. 2 Effective Date shall have been paid. All reasonable fees and disbursements of counsel to the Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken No. 2 Arrangers in connection with this Amendment and the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agentshall have been paid, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to the extent invoiced.
(e) The Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestdocumentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act that has been requested not less than two (2) Business Days prior to the Amendment No. 2 Effective Date.
F. Company (f) The aggregate principal amount of the Exchanged Term B Loans plus the aggregate principal amount of the Additional Term B-1 Commitments shall pay equal $1,125,000,000.
(g) The Borrower shall have paid to each Lender executing this the Administrative Agent, for the ratable account of the Lenders of the Non-Exchanged Term B Loans, all accrued and unpaid interest on the Non-Exchanged Term B Loans to, but not including, the Amendment No. 2 Effective Date on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.Amendment No. 2
Appears in 1 contract
Samples: Credit Agreement (MSCI Inc.)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon and the satisfaction obligations of the Agent and the Banks hereunder are subject to the following conditions:
(a) receipt by the Agent from each of the parties hereto of a duly executed counterpart of this Amendment signed by such party;
(b) receipt by the Agent of the following, all in form and substance satisfactory to the Agent:
(i) a closing certificate, substantially in the form of Exhibit G to the Credit Agreement, appropriately modified to refer to this Amendment, signed by a principal officer of each Loan Party;
(ii) an opinion, substantially in the form of Exhibit C to the Credit Agreement, appropriately modified to refer to this Amendment, signed by the General Counsel of the Borrower; and
(iii) a certificate of each Loan Party, signed by the Secretary, an Assistant Secretary, a member, manager, partner, trustee or other authorized representative of the respective Loan Party, certifying as to the names, true signatures and incumbency of the officer or officers of the respective Loan Party authorized to execute and deliver the Loan Documents, and certified copies of the following conditions precedent items: (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each LenderA) the followingLoan Party’s Organizational Documents; (B) the Loan Party’s Operating Documents; (C) if applicable, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies a certificate of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware orsuch Loan Party’s State of organization as to the good standing or existence of such Loan Party; and (D) the organizational action, if such document is of a type that may not be so certifiedany, certified taken by the secretary or similar officer board of Company, together with a good standing certificate from the Secretary of State directors of the State of DelawareLoan Party or the members, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and managers, trustees, partners or other applicable Persons authorizing the Loan Party’s execution, delivery, delivery and performance of this Amendment, and any other documents which the Pledge Agreement Amendment (as defined below) Agent or any Bank may reasonably request relating to the existence of each Loan Party, the authority for and the Deed validity of Trust, certified as of the First Amendment Effective Date this Amendment.
(c) receipt by the secretary or similar officer as being in full force Agent of all other documents that the Agent may reasonably request, respecting this Amendment and effect without modification or amendmentthe transactions contemplated hereunder;
3. Signature and incumbency certificates of its officers executing (d) the fact that after giving effect to this Amendment, the Pledge Agreement Amendment representations and warranties of the Deed of Trust; and
4. Executed copies Loan Parties contained in Section 5 of this Amendment shall be true on and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent hereof; and
(e) the “Pledge Agreement Amendment”).
B. Administrative Agent Borrower shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules paid to the Pledge AgreementAgent all fees and expenses (including, without limitation, the upfront fee payable to the Agent in the amount of $35,000.00, and (iiireasonable attorneys’ fees and expenses to the extent invoiced and presented to the Borrower as of the date hereof) certificates (payable to the Agent arising from or relating to the negotiation, preparation, execution, delivery performance or administration of this Amendment or which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and are otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in paid by the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment Borrower on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposuredate hereof.
Appears in 1 contract
Samples: Credit Agreement (Cato Corp)
Conditions to Effectiveness. Section 1 of this Amendment This Agreement shall become effective only upon the satisfaction of all first date on which each of the following conditions precedent shall have been satisfied (the date of satisfaction of or waived) (such conditions being referred to herein as date, the “First Amendment Effective Date”):
A. On 2.1 The Administrative Agent (or before its counsel) shall have received from (i) the First Amendment Effective Date, Company shall deliver to Borrower and (ii) the Revolving Credit Lenders that collectively constitute the Required Revolving Credit Lenders (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence satisfactory to the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender(which may include electronic transmission of a signed signature page of this Agreement) the following, each, unless otherwise noted, dated the First Amendment Effective Date:that such party has signed a counterpart of this Agreement.
1. Copies of all amendments 2.2 The Borrower shall have paid to the Organizational Documents Administrative Agent (i) for the account of Company each Revolving Credit Lender that has executed and delivered to the Administrative Agent a signature page to this Agreement as a Revolving Credit Lender, prior to 5:00 p.m., New York City time on or after February 19June 9, 20082020 (each such Revolving Credit Lender, a “Consenting Lender”) a consent fee in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State an amount equal to 0.25% of the State aggregate principal amount of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions Revolving Credit Commitment of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified such Consenting Lender as of the First Amendment Effective Date by the secretary and (ii) all other expenses due and payable on or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and prior to the First Amendment Effective Date (including in Section 4 hereof) to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent extent invoiced at least three (3) Business Days prior to the “Pledge Agreement Amendment”First Amendment Effective Date (or such shorter period reasonably agreed by the Borrower).
B. 2.3 The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying that the representations and warranties set forth in (ix) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, Section 3 of this Agreement and (iiiy) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed Article V of the Credit Agreement and in blank and otherwise satisfactory in form and substance to Administrative Agent)the other Loan Documents are, in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens case, true and correct in all intellectual property of Company material respects (other than any such representation and its Subsidiaries warranty that is already qualified by materiality or “Material Adverse Effect” in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Companytext thereof, in form which case such representation and substance reasonably satisfactory to Administrative Agent warranty shall be true in all respects) on and its counsel, dated as of the First Amendment Effective Date, except to the extent such representations and setting forth the matters warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects on and as Administrative Agent acting on behalf of Lenders may reasonably requestsuch earlier date.
E. On 2.4 At the time of and immediately after giving effect to this Agreement, no Default or before the First Amendment Effective Date, all corporate and other proceedings taken Event of Default shall exist or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestresult therefrom.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment and the obligations of the Tranche B-1 Term Lenders to make the Tranche B-1 Term Loans shall become effective only upon on the satisfaction of all of first Business Day on which the following conditions precedent are satisfied or waived (the date of satisfaction of such conditions being referred to herein as the “First Amendment No. 2 Effective Date”):
A. On (i) the Administrative Agent (or before its counsel) shall have received counterparts of this Amendment or Amendment No. 2 Consents that, when taken together, bear the First signatures of (A) each Tranche B-1 Cashless Option Lender and each Tranche B-1 Post-Closing Option Lender, (B) the Administrative Agent, (C) the Tranche B-1 Additional Term Lender, (D) the Borrower and (E) each Guarantor;
(ii) the Administrative Agent shall have received a notice of Borrowing for the Additional Tranche B-1 Term Loans (whether in writing or by telephone) in accordance with the Credit Agreement;
(iii) the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(A) a favorable opinion of Xxxxxx, Xxxxxx & Xxxxxxxx LLP, counsel for the Loan Parties, in a form and substance reasonably satisfactory to the Administrative Agent and the Amendment No. 2 Arrangers;
(B) a certificate from a Responsible Officer of each Loan Party dated as of the Amendment No. 2 Effective Date, Company shall deliver and attaching the documents referred to Lenders in clause (or to C) below;
(C) the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendershall have received (i) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State resolutions of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the execution, delivery, delivery and performance of this Amendmentthe Amendment (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the Pledge Agreement Amendment (as defined below) and the Deed extensions of Trustcredit contemplated hereunder, certified as of the First Amendment No. 2 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendmentamendment and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party having its jurisdiction of incorporation, organization or formation in either of the states of Delaware or New York;
3. Signature (D) immediately before and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of immediately after giving effect to this Amendment and the First Amendment borrowing of or exchange into the Tranche B-1 Term Loans and to Pledge the application of any proceeds therefrom, (i) no Default or Event of Default shall exist and Security (ii) all of the representations and warranties contained in the Credit Agreement dated shall be true and correct in all material respects at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(E) the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received from the Borrower an Officer’s Certificate certifying as to compliance with the preceding clause (iD);
(F) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets a certificate attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the transactions hereunder, from the Borrower’s chief financial officer or other documents or instruments required treasurer; and
(G) the representations and warranties of each Loan Party set forth in Section 6 below shall be true and correct in all material respects; and
(iv) the fees in the amounts previously agreed in writing by the Amendment No. 2 Arrangers to be filed in order received on the Amendment No. 2 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (including the reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx llp, as counsel to create or perfect Liens in all intellectual property of Company the Amendment No. 2 Arrangers and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken Agent) incurred in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agentfor which invoices have been presented at least one (1) Business Day prior to the Amendment No. 2 Effective Date, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbeen paid in full.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Installed Building Products, Inc.)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date on which each of the following conditions precedent is satisfied:
(a) The Administrative Agent’s receipt of the date following, each of satisfaction which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(1) counterparts of such conditions being referred this Amendment executed by (A) each Loan Party and (B) the Administrative Agent;
(2) Consents to herein as this Amendment executed by the “First Required Lenders; and
(3) a Note executed by the relevant Borrowers in favor of each Lender requesting a Note at least two (2) Business Days prior to the Amendment Effective Date”):
A. On or before the First Amendment No. 4 Effective Date, Company shall deliver to Lenders if any.
(or to b) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise notedspecified;
(1) an opinion of (i) Ropes & Xxxx LLP, New York counsel to the Loan Parties and (ii) Xxxxxx, Xxxxxxxx & Xxxxxx, P.C., New Jersey counsel to the Loan Parties, each dated the First Amendment No. 4 Effective Date:
1. Copies of all amendments Date and addressed to the Organizational Documents of Company executed on or after February 19, 2008Administrative Agent and the Lenders, in a form reasonably satisfactory to the Administrative Agent;
(2) (A) certificates of good standing (to the extent such concept exists in such Loan Party’s state of organization) from the applicable secretary of state of the state of organization of each caseLoan Party, certified by the Secretary of State of Delaware or, if such document is and (B) a certificate of a type Responsible Officer of each Loan Party dated the Amendment No. 4 Effective Date and certifying (I) to the effect that may not be so certified, (w) attached thereto is a true and complete copy of the certificate or articles of incorporation or organization such Loan Party certified as of a recent date by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State state of the State state of Delawareits organization, or in the alternative, certifying that such certificate or articles of incorporation or organization have not been amended since the Closing Date, and that such certificate or articles are in full force and effect, (x) attached thereto is a true and complete copy of the by-laws or operating agreements of each dated a recent date prior to Loan Party as in effect on the First Amendment No. 4 Effective Date;
2. Resolutions , or in the alternative, certifying that such by-laws or operating agreements have not been amended since the Closing Date and (y) attached thereto is a true and complete copy of its Board resolutions duly adopted by the board of Directors approving and directors of each Loan Party authorizing the execution, delivery, delivery and performance of the Loan Documents to which such Loan Party is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (II) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and signed by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to this clause (B); and
(3) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (x) before and after giving effect to this Amendment, the Pledge representations and warranties of the Parent Borrower and each other Loan Party contained in Article V of the Credit Agreement Amendment (as defined below) or any other Loan Document shall be true and the Deed of Trust, certified correct in all material respects on and as of the First Amendment No. 4 Effective Date by Date; provided that, to the secretary extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar officer as being language shall be true and correct (after giving effect to any qualification therein) in full force all respects on such respective date and (y) at the time of and after giving effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing to this Amendment, no Default shall exist, or would result from the Pledge Agreement Amendment and related Credit Extension or from the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as application of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)proceeds therefrom.
B. (c) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Pledge Mortgaged Property located in the United States as of the Amendment No. 4 Effective Date (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and the applicable Loan Party relating thereto, if required) and, if any such Mortgaged Property is located in a special flood hazard area, evidence of flood insurance to the extent required pursuant to the Credit Agreement, .
(d) Receipt of Consents from Term Lenders and receipt of a Joinder Agreement executed by one or more Additional Term B-2 Lenders such that the aggregate principal amount of the Exchanged Term B-1 Loans plus the aggregate principal amount of the Additional Term B-2 Commitments shall equal the aggregate principal amount of the outstanding Term B-1 Loans immediately prior to the effectiveness of this Amendment.
(iiie) certificates (which certificates The Parent Borrower shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance have paid to the Administrative Agent), in each case reflecting for the recent name change ratable account of Companythe Term Lenders immediately prior to the Amendment No. 4 Effective Date, all accrued and unpaid interest on the Term B-1 Loans to, but not including, the Amendment No. 4 Effective Date on the Amendment No. 4 Effective Date.
C. (f) All fees and expenses due to the Administrative Agent and the Amendment No. 4 Lead Arrangers (including, without limitation, pursuant to Section 6 hereof) required to be paid on the Amendment No. 4 Effective Date and invoiced at least two (2) Business Days prior to the Amendment No. 4 Effective Date shall have been paid.
(g) To the extent reasonably requested by an Additional Term B-2 Lender in writing not less than five (5) Business Days prior to the Amendment No. 4 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Parent Borrower required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(h) The Administrative Agent shall have received cover sheets or other documents or instruments required a Request for Credit Extension not later than 1:00 p.m. on the Business Day prior to be filed in order to create or perfect Liens in all intellectual property the date of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to proposed Credit Extension. The Administrative Agent shall notify the Parent Borrower and its counsel, dated as the Lenders of the First Amendment No. 4 Effective Date, Date and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbinding.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Par Pharmaceutical Companies, Inc.)
Conditions to Effectiveness. Section 1 of this Amendment The Amended Credit Agreement shall not become effective only upon until the satisfaction of all date on which each of the following conditions precedent is satisfied (or waived in accordance with Section 10.02 of the Original Credit Agreement) (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (a) The Administrative Agent (or to its counsel) shall have received from each Obligor and the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendereither (i) a counterpart of the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies Amended Credit Agreement signed on behalf of all amendments such party or (ii) written evidence satisfactory to the Organizational Documents Administrative Agent (which may include facsimile transmission of Company a signed signature page of the Amended Credit Agreement) that such party has signed a counterpart of the Amended Credit Agreement.
(b) The Administrative Agent (or its counsel) shall have received a Note executed on or after February 19, 2008, in each case, certified by the Secretary Borrower in favor of State of Delaware or, if such document is of each Lender that requested a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date Note prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined belowdate hereof in accordance with Section 2.08(e) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)Amended Credit Agreement.
B. (c) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementon or before the Amendment Effective Date certified copies of the charter, (ii) updated schedules to the Pledge Agreement, by-laws and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets other constitutive or other documents of each Obligor and Holdco and of resolutions of the Board of Directors of each Obligor and Holdco authorizing the Transactions, together with incumbency certificates or instruments required analogous documents in any other jurisdiction dated the Amendment Effective Date evidencing the identity, authority and capacity of each Person authorized to execute and deliver this Amendment, the Amended Credit Agreement, the other Loan Documents and any other documents to be filed in order to create or perfect Liens in delivered by such Obligor and Holdco pursuant hereto, all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received evidence reasonably satisfactory to it of the consent of CT Corporation System in New York, New York to the appointment and designation provided by Section 10.09(d) of the Amended Credit Agreement.
(e) The Administrative Agent shall have received a certificate, dated as the date of this Amendment and signed by a Responsible Officer, confirming that (i) the representations and warranties of each Obligor and Holdco set forth in Article III of the First Amended Credit Agreement are true and correct and (ii) no Default under the Amended Credit Agreement has occurred and is continuing.
(f) The Administrative Agent shall have received payment of Upfront Fees for the account of each Lender pursuant to Section 2.10(a)(i) of the Amended Credit Agreement.
(g) The Borrower shall have paid all fees required to be paid by it pursuant to the Fee Letters (as defined in the Amended Credit Agreement) and, unless waived by the Administrative Agent, the Borrower shall have paid all legal fees and expenses of the Administrative Agent required to be paid pursuant to the terms of this Amendment and to the extent invoiced and received by the Borrower prior to date hereof.
(h) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of (i) the general counsel of Covidien Ltd. in substantially the form attached as Exhibit C-1 of the Amended Credit Agreement, (ii) the general counsel of Covidien plc in substantially the form attached as Exhibit C-2 of the Amended Credit Agreement, (iii) Xxxxx & Xxxxx, special Luxembourg counsel of the Borrower in substantially the form attached as Exhibit C-3 of the Amended Credit Agreement, (iv) Xxxxxxx, special Bermudian counsel of Covidien Ltd., in substantially the form attached as Exhibit C-4 of the Amended Credit Agreement, (v) Xxxxxx, Xxxx & Xxxxxxxx LLP, special New York counsel of the Obligors in substantially the form attached as Exhibit C-5 and setting forth (vi) Xxxxxx Xxx, special Irish counsel of Holdco in substantially the matters form attached as Exhibit C-6 of the Amended Credit Agreement.
(i) The Administrative Agent acting shall have received evidence reasonably satisfactory to it that the Irish Transaction shall have been consummated or is being consummated contemporaneously with the effectiveness hereof on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate . The Administrative Agent shall notify the Borrower and other proceedings taken or to be taken the Lenders of (i) the satisfaction of the conditions described in connection with clauses (a) through (i) above and (ii) the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel Amendment Effective Date. Such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbinding.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. (a) The Waiver and the amendments to the Credit Agreement set forth in Section 1 of this Amendment 2 above (other than Section 2(c)) shall become effective only upon on the satisfaction of first date on which the Agent shall have received counterparts hereof executed by CSC and the Majority Lenders or, as to any Lender, evidence satisfactory to the Agent that such Lender has executed this Amendment.
(b) Sections 4 and 5 and the amendments to the Credit Agreement set forth in Section 2(c) shall become effective on the first date (the “Assumption Effective Date”) on which the following conditions are satisfied: (i) The Agent shall have received the following: 6 #89270124v18 (a) counterparts hereof executed by CSC and all of the following conditions precedent Lenders or, as to any Lender, evidence satisfactory to the Agent that such Lender has executed this Amendment; (b) an Assumption Agreement executed by CSC and Xxxxxxx substantially in the date form of satisfaction Annex 1 hereto relating to Xxxxxxx’x assumption of such conditions being referred the obligations of CSC under the Credit Agreement; (c) a Designation Agreement executed by CSC and Xxxxxxx, substantially in the form of Annex II hereto relating to herein Xxxxxxx’x designation of CSC as a Designated Subsidiary under the “First Amendment Effective Date”):
A. On or before Credit Agreement; (d) a certificate of an authorized officer of Xxxxxxx, dated the First Amendment Assumption Effective Date, Company shall deliver (A) certifying the names and true signatures of the officers of Xxxxxxx authorized to Lenders sign the Assumption Agreement and any other documents to be delivered by Xxxxxxx in connection with the Assumption Agreement, (or to Administrative Agent for Lenders with sufficient originally executed copiesB) attaching and certifying the correctness and completeness of the copies of Xxxxxxx’x Certificate of Incorporation and Bylaws, where appropriate, for each Lender(C) attaching and certifying the following, each, unless otherwise noted, dated correctness and completeness of copies of the First Amendment Effective Date:
1. Copies resolutions of all amendments to the Organizational Documents Board of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary Directors or similar officer governing body of CompanyXxxxxxx, together with approving the execution, delivery and performance of the Assumption Agreement and the other Loan Documents to which Xxxxxxx is to be a party and (D) attaching a good standing certificate of Xxxxxxx from the Secretary state of State of the State of Delawareits organization, each dated a recent date prior to the First Amendment Assumption Effective Date;
2. Resolutions ; (e) no later than five Business Days in advance of its Board the Assumption Effective Date, all documentation and other information reasonably requested with respect to Xxxxxxx in writing by any Lender at least ten Business Days in advance of Directors approving the Assumption Effective Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and authorizing anti-money laundering rules and regulations, including the executionPatriot Act; (f) a certificate of an authorized officer of Xxxxxxx, deliverydated the Assumption Effective Date, stating that (i) the representations and performance warranties of Xxxxxxx (after giving effect to this AmendmentAmendment including Section 2(c) hereof) contained in Article IV of the Credit Agreement are correct, (ii) no Event of Default or Potential Event of Default exists on and as of the Pledge Agreement Amendment Assumption Effective Date and (iii) the “Guarantee Release Date” (as defined below) and in the Deed form of Trust, certified Guaranty set forth as of Exhibit B to the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Term Loan Credit Agreement dated as of December 16, 2016 among Xxxxxxx, the date hereof between Companylenders parties thereto and The Bank of Tokyo-Mitsubishi UFJ, its Subsidiaries Ltd., as administrative agent, as amended, supplemented or otherwise modified on or prior to the Assumption Effective Date) has 7 #89270124v18 occurred or shall occur substantially concurrently with the Assumption Effective Date; and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (ig) a duly completed amendment to UCC financing statementfavorable legal opinion of in house legal counsel of Xxxxxxx, dated the Assumption Effective Date; and (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates The Merger shall have been consummated or shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting consummated substantially concurrently with the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Assumption Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date on which each of the following conditions precedent is satisfied:
(a) The Administrative Agent’s receipt of the date following, each of satisfaction which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified, and each executed by a Responsible Officer of such conditions being referred the Borrower:
(1) executed counterparts of this Amendment;
(2) a Note executed by the Borrower in favor of each Lender requesting a Note at least two (2) Business Days prior to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment No. 3 Effective Date, Company shall deliver to Lenders if any.
(or to b) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise notedspecified;
(1) an opinion of (x) Smith, dated the First Amendment Effective Date:
1. Copies of all amendments Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P. special counsel to the Organizational Documents of Company executed on or after February 19Borrower and (y) Xxxxxxxx Xxxxx & Deutsch LLP, 2008special New York counsel to the Borrower, in each case, certified by dated the Secretary Amendment No. 3 Effective Date and addressed to each L/C Issuer, Arranger, the Administrative Agent and the Lenders, substantially in the form previously provided to the Administrative Agent;
(2) (A) a certificate as to the good standing of State of Delaware or, if such document is each Loan Party as of a type that may not be so certifiedrecent date, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State state of Delawareits organization or a similar Governmental Authority and (B) a certificate of a Responsible Officer, secretary or assistant secretary of each Loan Party dated the Amendment No. 3 Effective Date and certifying (I) to the effect that (w) attached thereto is a true and complete copy of the certificate or articles of incorporation or organization such Loan Party certified as of a recent date prior to by the First Secretary of State of the state of its organization, or in the alternative (other than in the case of the Borrower), certifying that such certificate or articles of incorporation or organization have not been amended since the Closing Date, and that such certificate or articles are in full force and effect, (x) attached thereto is a true and complete copy of the by-laws or operating agreements of each Loan Party as in effect on the Amendment No. 3 Effective Date;
2. Resolutions , or in the alternative (other than in the case of its Board the Borrower), certifying that such by-laws or operating agreements have not been amended since the Closing Date and (y) attached thereto is a true and complete copy of Directors approving and resolutions duly adopted by the board of directors, board of managers or member, as the case may be, of each Loan Party authorizing the execution, delivery, delivery and performance of this Amendmentthe Loan Documents to which such Loan Party is a party, the Pledge Agreement Amendment (as defined below) and the Deed of Trustthat such resolutions have not been modified, certified as of the First Amendment Effective Date by the secretary rescinded or similar officer as being amended and are in full force and effect without modification effect, and (II) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and signed by another officer as to the incumbency and specimen signature of the Responsible Officer, secretary or amendmentassistant secretary executing the certificate pursuant to this clause (B);
(3. Signature ) a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in paragraphs (g) and incumbency certificates (h) of its officers executing this Amendment, Section 4 and that the Pledge Agreement Amendment Term B-3 Loans meet the requirements and the Deed of Trustconditions to be Replacement Term Loans; and
(4. Executed copies of this Amendment ) a Guarantor Consent and the First Amendment to Pledge and Security Agreement Reaffirmation, dated as of the date hereof between Company, its Subsidiaries and Administrative Agent executed by each of the Guarantors (the “Pledge Agreement AmendmentGuarantor Consent and Reaffirmation Agreement”), whereby each of the Guarantors consents to this Amendment and reaffirms each Lien granted by it to the Administrative Agent for the benefit of the Secured Parties under each of the Loan Documents to which it is a party.
B. (c) The aggregate principal amount of the Converted Existing Term Loans plus the aggregate principal amount of the Additional Term B-3 Commitments shall equal the aggregate principal amount of the outstanding Existing Term Loans immediately prior to the effectiveness of this Amendment.
(d) The Administrative Agent shall have received Consents to this Amendment executed by the Required Lenders and the Required Revolving Lenders.
(e) The Borrower shall have paid to the Administrative Agent, for the ratable account of the Term Lenders immediately prior to the Amendment No. 3 Effective Date, all accrued and unpaid interest on the Term B Loans to, but not including, the Amendment No. 3 Effective Date on the Amendment No. 3 Effective Date.
(f) All fees and expenses due to the Administrative Agent, the Arrangers and the Lenders required to be paid on the Amendment No. 3 Effective Date shall have been paid.
(g) No Default shall exist, or would result from the Amendment and related Credit Extension or from the application of the proceeds therefrom.
(h) The representations and warranties of the Borrower and each other Loan Party contained in Article 5 of the Credit Agreement and Section 3 of this Amendment or any other Loan Document shall be true and correct in all material respects (and in all respects if qualified by materiality) on and as of the date hereof, except (A) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if qualified by materiality) as of such earlier date and (B) that for purposes of this Section 4, the representations and warranties contained in Section 5.05(a) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished prior to the Amendment No. 3 Effective Date or pursuant to Section 6.01(a) and Section 6.01(b) of the Credit Agreement.
(i) To the extent requested by a duly completed amendment to UCC financing statement, Term B-3 Lender in writing not less than three (ii3) updated schedules Business Days prior to the Pledge AgreementAmendment No. 3 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and (iii) certificates (which certificates shall be accompanied other information with respect to the Borrower required by irrevocable undated stock powersregulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting including without limitation the recent name change of CompanyPATRIOT Act.
C. (j) The Administrative Agent shall have received cover sheets or other documents or instruments required a Request for Credit Extension not later than the Business Day prior to be filed in order to create or perfect Liens in all intellectual property the date of Company and its Subsidiaries in the United Statesproposed Credit Extension.
D. Lenders (k) The Administrative Agent shall have received copies the executed counterparts of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form the Joinder executed by the Borrower and substance reasonably satisfactory to each Additional Term B-3 Lender. The Administrative Agent shall notify the Borrower and its counsel, dated as the Lenders of the First Amendment No. 3 Effective Date, Date and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory conclusive and binding. Notwithstanding the foregoing, the amendments effected hereby shall not become effective, the obligations of the Additional Term B-3 Lenders to make Additional Term B-3 Loans will automatically terminate, if each of the conditions set forth or referred to in form and substance this Section 4 has not been satisfied at or prior to Administrative Agent and such counsel5 p.m., and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestNew York City time, on December 20, 2013.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Quintiles Transnational Holdings Inc.)
Conditions to Effectiveness. Section 1 This Amendment and Restatement and the obligations of this Amendment the Lenders to make Loans under the Credit Agreement as amended and restated hereby shall become effective only upon on the satisfaction of all date (the "Effective Date") on which each of the following conditions precedent is satisfied (or waived in accordance with Section 9.02 of the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”Credit Agreement):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (a) The Administrative Agent (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for its counsel) shall have received from each Lenderparty hereto either (i) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies counterpart of this Amendment and Restatement signed on behalf of such party or (ii) written evidence satisfactory to the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)which may include telecopy transmission of a signed signature page of this Amendment and Restatement) that such party has signed a counterpart of this Amendment and Restatement.
B. (b) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) a duly completed amendment to UCC financing statementSidley Xxxxxx Xxxxx & Xxxx LLP, special counsel for the Company, substantially in the form of Exhibit D-1, and (ii) updated schedules the General Counsel of the Company, substantially in the form of Exhibit D-2. Each Loan Party hereby requests such counsel to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Companydeliver such opinions.
C. (c) The Administrative Agent shall have received cover sheets 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 Transactions and any other documents legal matters relating to the Loan Parties, this Amendment and Restatement, the Credit Agreement or instruments required to be filed in order to create or perfect Liens in the Transactions, all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated as the Effective Date and signed by the President, a Vice President or a Financial Officer of the First Company, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement.
(e) Any loans outstanding under the Existing Credit Agreement shall have been repaid, together with all interest, fees and other amounts accrued thereunder.
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the agreed upon fees and charges, plus disbursements, of counsel) required to be reimbursed or paid by the Company or any Subsidiary in connection with this Amendment and Restatement or any Loan Document. The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbinding.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Edwards Lifesciences Corp)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date (such date being referred to as the “Amendment No. 3 Effective Date”), when each of the following conditions precedent shall have been satisfied:
(i) each Credit Party shall have executed and delivered counterparts of this Amendment to the date Term Loan Administrative Agent, (ii) each Consenting Lender and the New Lender shall have executed and delivered counterparts of satisfaction of such conditions being referred this Amendment to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Term Loan Administrative Agent for Lenders with sufficient originally and (iii) each Administrative Agent shall have executed copies, where appropriate, for a counterpart of this Amendment;
(b) each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State representations and warranties of Delaware, each dated a recent date prior to Credit Party contained in Section 4 hereof shall be true and correct on and as of the First Amendment No. 3 Effective Date;
2(c) no Default or Event of Default shall have occurred and be continuing on the Amendment No. Resolutions 3 Effective Date or after giving effect to the New Term Loans made on the Amendment No. 3 Effective Date;
(d) the Term Loan Administrative Agent shall have received a customary written opinion of its Board Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, as counsel to the Borrower (and, with respect to the continuing perfection of Directors approving and authorizing the execution, delivery, and performance of this Amendmentsecurity interests, the Pledge Agreement Amendment (as defined below) and the Deed of TrustGuarantors), certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between CompanyAmendment No. 3 Effective Date and addressed to the Administrative Agents, its Subsidiaries the New Lender, the Consenting Lenders and the Revolving Lenders;
(i) the Amendment No. 3 Lead Arranger shall have received the fees in the amounts previously agreed to in writing with the Borrower to be received on the Amendment No. 3 Effective Date pursuant to that certain Fee Letter, dated as of February 6, 2020 and (ii) the Term Loan Administrative Agent and the Amendment No. 3 Lead Arranger shall have received all reasonable and documented out-of-pocket fees and expenses required to be paid or reimbursed on the Amendment No. 3 Effective Date, including pursuant to that certain Engagement Letter, dated as of February 6, 2020 and under Section 11.01 of the Existing Credit Agreement (including the reasonable legal fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agents and the Amendment No. 3 Lead Arranger);
(f) the Term Loan Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent or its counsel) shall have received (i) a duly completed amendment certificate of the Borrower, dated as of the Amendment No. 3 Effective Date and executed by a Responsible Officer thereof, which shall (A) certify that (x) either (1) attached thereto is a true and complete copy of the Organizational Documents of the Borrower certified, where applicable, by the relevant authority of its jurisdiction of organization or (2) the Organizational Documents of the Borrower, delivered on the Closing Date to UCC financing statementthe Term Loan Administrative Agent, have not been amended, repealed, modified or restated and are in full force and effect, and (y) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors authorizing the execution and delivery of this Amendment, which resolutions or written consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect as of the Amendment No. 3 Effective Date, and (B) identify by name and title and bear the signatures of the Responsible Officers of the Borrower authorized to sign this Amendment on the Amendment No. 3 Effective Date and (ii) updated schedules to a good standing certificate for the Pledge AgreementBorrower from the relevant authority of its jurisdiction of organization or incorporation, and dated as of a recent date;
(iiig) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Term Loan Administrative Agent shall have received cover sheets or a certificate of the Borrower signed by a Responsible Officer thereof certifying that the conditions set forth in Sections 3(b) and (c) hereof have been satisfied;
(h) the Borrower shall, substantially concurrently with the Amendment No. 3 Effective Date and after the making of the New Term Loans (i) repay all Original Term Loans outstanding immediately prior to the Amendment No. 3 Effective Date (other documents or instruments required than Converted Term Loans) and (ii) pay to be filed in order the Term Loan Administrative Agent, for the ratable benefit of the existing Lenders of Original Term Loans, all accrued and unpaid interest to, but not including, the Amendment No. 3 Effective Date with respect to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.Original Term Loans outstanding under the Existing Credit Agreement immediately before giving effect to this Amendment;
D. Lenders (i) the Term Loan Administrative Agent shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, a Borrowing Notice in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as accordance with the requirements of the First Existing Credit Agreement; and
(1) Upon the reasonable request of any Lender made at least ten (10) Business Days prior to the Amendment No. 3 Effective Date, the Borrower shall have provided to such Lender the documentation and setting forth other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before PATRIOT Act, in each case at least three Business Days prior to the First Amendment No. 3 Effective Date and (2) At least ten (10) Business Days prior to the Amendment No. 3 Effective Date, all corporate and other proceedings taken or any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to such Borrower; and
(k) The Term Loan Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents a prepayment notice with respect to the Initial Term Loans (as Administrative Agent may reasonably requestdefined in the Existing Credit Agreement).
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Third Amendment shall become not be effective only upon the satisfaction of all until each of the following conditions precedent (has been fulfilled to the date of reasonable satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):Administrative Agent:
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to a) The Administrative Agent for Lenders with sufficient originally shall have received counterparts of this Third Amendment duly executed copies, where appropriate, for and delivered by each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)parties hereto.
B. (b) The Administrative Agent shall have received (iA) a duly completed amendment to UCC financing statement, (ii) updated schedules reasonably satisfactory opinions of counsel to the Pledge AgreementLoan Parties (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of this Third Amendment and the documents, instruments and agreements executed in connection herewith), and (iiiB) certificates satisfactory evidence that the Agent (which certificates on behalf of the Credit Parties) shall be accompanied continue to have a valid and perfected first priority (subject to the exceptions set forth in the Credit Agreement) lien and security interest in the Collateral.
(c) All corporate and shareholder action on the part of the Loan Parties necessary for the valid execution, delivery and performance by irrevocable undated stock powers, the Loan Parties of this Third Amendment shall have been duly endorsed in blank and otherwise effectively taken and evidence thereof reasonably satisfactory in form and substance to the Administrative Agent shall have been provided to the Administrative Agent), in each case reflecting the recent name change of Company.
C. (d) There shall not have occurred since June 30, 2011 any event or circumstance that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect.
(e) The Administrative Agent shall have received cover sheets or other documents or instruments and be reasonably satisfied with detailed financial projections and business assumptions for the Parent and its Subsidiaries on (x) a monthly basis for the twelve month period following the Third Amendment Effective Date, and (y) on an annual basis, for each fiscal year thereafter through the Maturity Date, including, in each case, a consolidated income statement, a balance sheet, a statement of cash flow and a borrowing base availability analysis. All of such information shall have been prepared in good faith based upon assumptions believed to be reasonable at the time (it being acknowledged and agreed that, with respect to any projections, actual results may vary from such projections and related information and that such variations may be significant).
(f) All fees required to be filed paid to the Agents or MLPFS on or before the Third Amendment Effective Date in order accordance with the Fee Letter shall have been paid in full, and all fees required to create be paid to the Lenders on or perfect Liens before the Third Amendment Effective Date shall have been paid in all intellectual property of Company and its Subsidiaries in the United Statesfull.
D. Lenders (g) All outstanding Credit Party Expenses (including, without limitation, in respect of the preparation, negotiation, administration, management, execution and delivery of this Third Amendment and any related documents, instruments and agreements) shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Companybeen paid.
(h) The Administrative Agent shall have received, in form and substance reasonably satisfactory to Administrative Agent it, all inventory appraisals, field audits, and its counselsuch other reports, dated audits or certifications as of it may reasonably request.
(i) After giving effect to (i) all Loans outstanding as of, to be made at, and immediately subsequent to, the First Third Amendment Effective Date, and setting forth (ii) all Letters of Credit outstanding as of, to be issued at, and immediately subsequent to, the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Third Amendment Effective Date, all corporate Availability shall be not less than $100,000,000. The Administrative Agent shall have received a Borrowing Base Certificate dated as of the Third Amendment Effective Date and other proceedings taken showing the Borrowing Base as of the close of business as of the last day of the most recent Fiscal Month ending at least fifteen (15) days prior to the Third Amendment Effective Date.
(j) After giving effect to this Third Amendment, no Default or Event of Default shall have occurred and be continuing.
(k) The Administrative Agent shall have received such additional documents, instruments, and agreements as any Agent may have reasonably requested prior to be taken the date hereof in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requesthereby.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this 3.1. This Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment No. 6 Effective Date”):) on which:
A. On (a) The Administrative Agent (or before its counsel) shall have received from (i) the First Administrative Agent, (ii) the Additional B-4 Dollar Term Lender (which, for the avoidance of doubt, constitutes the Required Facility Lenders in respect of the Initial B-4 Dollar Term Loans on the Amendment No. 6 Effective Date) and (iii) each Loan Party, Company shall deliver (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to Lenders (or to the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on (which may include a telecopy or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is other electronic transmission of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance signed signature page of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed that such party has signed a counterpart of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. (b) The Administrative Agent shall have received a customary written opinion (i) a duly completed amendment to UCC financing statement, (ii) updated schedules addressed to the Pledge AgreementAdministrative Agent and the Lenders and dated the Amendment No. 6 Effective Date) of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel for the Loan Parties. Each of the Borrower and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance Holdings hereby instruct such counsel to Administrative Agent), in each case reflecting the recent name change of Companydeliver such legal opinion.
C. (c) The Administrative Agent shall have received cover sheets such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other documents action, incumbency certificates, certificates of incorporation (or instruments required to be filed in order to create or perfect Liens in all intellectual property confirmation of Company and its Subsidiaries in no change since the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment No. 5 Effective Date, and setting forth ) and/or other certificates of Responsible Officers of each Loan Party as the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestrequire 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 Amendment No. 6 Effective Date.
F. Company (d) The Borrowers shall pay have paid to each Lender executing this the Administrative Agent all fees and expenses due to the Administrative Agent, the Amendment No. 6 Arrangers, as separately agreed in writing, on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.Amendment No. 6
Appears in 1 contract
Conditions to Effectiveness. The effectiveness of the amendments in Section 1 3 and the occurrence of this Amendment shall become effective only upon the Incremental Effective Date are subject to the satisfaction of all (or, to the extent not otherwise required by the Credit Agreement, waiver by the Incremental Revolving Facility Lenders) of the following conditions precedent conditions:
(i) the date of satisfaction of such conditions being referred to herein as Administrative Agent and the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders Arrangers (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendertheir counsel) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate shall have received from the Secretary of State of Borrower, Holdings and the State of DelawareSubsidiary Loan Parties, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) Incremental Revolving Facility Lender and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent and the Arrangers (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g. “Pledge Agreement Amendmentpdf”).) that such party has signed a counterpart of this Agreement;
B. (ii) the Administrative Agent shall have received (i) received, on behalf of itself and the Incremental Revolving Facility Lenders, a duly completed amendment to UCC financing statementwritten opinion, (ii) updated schedules dated the Incremental Effective Date, of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, special counsel to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for CompanyLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent and its counselcovering such matters relating to this Agreement as the Administrative Agent shall reasonably request;
(iii) the Administrative Agent and the Arrangers shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party party hereto dated the Incremental Effective Date and certifying:
(a) a copy of the certificate or articles of incorporation, dated certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization,
(b) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(c) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Incremental Effective Date and at all times since a date prior to the date of the resolutions described in clause (d) below,
(d) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of this Agreement and the other applicable Loan Documents and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Incremental Effective Date,
(e) 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, and
(f) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iv) the First Amendment Incremental Effective Date shall have occurred;
(v) the Administrative Agent and the Arrangers shall have received on or prior to three (3) Business Days prior to the Incremental Effective Date all documentation and other information of the type required by Section 3.25(a) of the Credit Agreement, to the extent such information has been requested not less than ten (10) Business Days prior to the Incremental Effective Date;
(vi) the Arrangers shall have received a certificate of a Responsible Officer of the Borrower certifying that after giving effect to the incurrence of the Incremental Revolving Facility Commitments on a Pro Forma Basis, the Incremental Amount shall not be exceeded; and
(vii) all fees required to be paid on the Incremental Effective Date pursuant to the Commitment Letter and the Fee Letter and all reasonable and documented out-of-pocket expenses required to be paid on the Incremental Effective Date pursuant to such Commitment Letter (with respect to such expenses to the extent invoiced at least three business days prior to the Incremental Effective Date) shall, upon the extension of the Incremental Revolving Facility Commitments on the Incremental Effective Date, and setting forth have been paid; in addition, to the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before extent invoiced at least three Business Days prior to the First Amendment Incremental Effective Date, all corporate reasonable and other proceedings taken documented out-of-pocket expenses incurred by the Administrative Agent or to be taken the Collateral Agent in connection with the transactions contemplated hereby preparation of this Agreement and all documents incidental thereto not previously found acceptable the other Loan Documents, or by the Administrative AgentAgent or the Collateral Agent in connection with the administration of this Agreement, acting on behalf including the reasonable fees, charges and disbursements of LendersXxxxxx Xxxxxx & Xxxxxxx LLP, and its counsel shall be satisfactory in form and substance to for the Administrative Agent and such counselthe Collateral Agent, and Administrative Agent and such counsel shall shall, upon the extension of the Incremental Revolving Facility Commitments on the Incremental Effective Date, have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbeen paid.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Conditions to Effectiveness. Section 1 of this 5.1. This Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment No. 9 Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Dateon which:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined belowa) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and The Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent or its counsel) shall have received from (i) a duly completed amendment to UCC financing statementthe Administrative Agent, (ii) updated schedules to the Pledge AgreementCollateral Agent, and (iii) certificates each Refinancing Revolving Lender and Incremental Revolving Lender, (iv) each L/C Issuer, (v) each Refinancing Term Lender, (vi) the Fronting Lender and (vii) each Loan Party, (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to the Administrative Agent (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change may include a telecopy or other electronic transmission of Companya signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
C. (b) The Administrative Agent (or its counsel) shall have received cover sheets received, from Parent originals or pdf copies or other documents or instruments required facsimiles, properly executed by a Responsible Officer of Parent of (i) the UK Security Agreement and (ii) a limited joinder to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of JonesSecurity Agreement, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, each in form and substance reasonably satisfactory to the Administrative Agent (or its counsel).
(c) The Administrative Agent (or its counsel) shall have received a customary written legal opinion (addressed to the Administrative Agent, the Refinancing Revolving Lenders, the Refinancing Term Lenders, the Consenting Lenders and the Fronting Lender) from (i) Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, New York counsel to the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent and its counsellegal counsel and (ii) Dxxxx Xxxx & Wxxxxxxx London LLP, dated as of English counsel to the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance reasonably satisfactory to the Administrative Agent. Each of the Borrower, Parent and New Holdings hereby instruct such counsel to deliver such legal opinion.
(d) The Administrative Agent and such (or its counsel, and Administrative Agent and such counsel ) shall have received all such counterpart originals certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or certified copies other action, incumbency certificates, certificates of such documents incorporation (or confirmation of no change since last delivered to the Administrative Agent) and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably requestrequire 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 Amendment No. 9 Effective Date (including, for the avoidance of doubt, with respect to the Parent, a certificate signed by a director of the Parent and attaching the articles of association of the Parent and resolutions of the board of directions of the Parent authorizing the Parent to enter into this Amendment and the other Loan Documents).
F. Company (e) The Borrower shall pay have paid to each Lender executing this the Administrative Agent all fees and expenses due to the Administrative Agent, the Amendment No. 9 Arrangers and the Amendment No. 9 Co-Managers, as separately agreed in writing, on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.Amendment No. 9
Appears in 1 contract
Conditions to Effectiveness. Section 1 This Amendment and the obligation of this Amendment the Incremental Term Lender to make the Incremental Term Loans shall become effective only on the date hereof (such date, the “Incremental Term Loan Effective Date”) upon satisfaction (or, with respect to Sections 4(a)(ii), (iii) and (iv) only, waiver by the Administrative Agent) of each of the following conditions:
(a) The Administrative Agent shall have received the following, each of which shall be originals, facsimiles or copies in .pdf form by electronic mail (followed promptly by originals):
(i) the Borrower’s counterpart signature page to this Amendment;
(ii) each Guarantor’s counterpart signature page to the acknowledgment attached to this Amendment;
(iii) a customary opinion from Ropes & Xxxx LLP, counsel to the Loan Parties;
(iv) such certificates of good standing or status (to the extent that such concepts exist) from the applicable secretary of state (or equivalent authority) of the jurisdiction of organization of each Loan Party, a certificate of customary resolutions or other customary action of each Loan Party, a customary certificate of a Responsible Officer of each Loan Party and an incumbency certificate 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 Incremental Term Loan Effective Date;
(v) a Loan Notice (without any representation therein as to the satisfaction of all conditions in Section 4.02 of the following conditions precedent (Amended Credit Agreement) relating to the date funding of satisfaction of such conditions being referred to herein as the “First Amendment Incremental Term Loans on the Incremental Term Loan Effective Date”):;
A. On or before the First Amendment Effective Date(vi) copies of recent Uniform Commercial Code, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies tax and intellectual property Lien searches and copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008judgment searches, in each case, certified in each jurisdiction reasonably requested by the Secretary Administrative Agent in respect of State of Delaware orthe Loan Parties;
(vii) a certificate, if such document is of a type that may not be so certified, certified by from the secretary or similar chief financial officer of Companythe Borrower, together with attesting to the Solvency of the Borrower and its Restricted Subsidiaries, on a good standing consolidated basis, on the Incremental Term Loan Effective Date after giving effect to the incurrence of the Incremental Term Loans; and
(viii) a certificate from the Secretary of State chief financial officer of the State of DelawareBorrower containing a representation that, each dated a recent date prior on the Incremental Term Loan Effective Date after giving Pro Forma Effect to the incurrence of the Incremental Term Loans, the Total Net First Amendment Effective Date;Leverage Ratio will be less than or equal to 3.50 to 1.00.
2. Resolutions (b) Immediately before and immediately after giving effect to this Amendment, no Event of its Board of Directors approving Default shall exist.
(c) Immediately before and authorizing the execution, delivery, and performance of immediately after giving effect to this Amendment, the Pledge representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement Amendment (as defined below) or in any other Loan Document shall be true and correct in all material respects; provided that, to the Deed of Trustextent that such representations and warranties specifically refer to an earlier date, certified they shall be true and correct in all material respects as of the First Amendment Effective Date by the secretary such earlier date; provided, further, that, any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar officer as being language shall be true and correct in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)all respects.
B. (d) The Administrative Agent shall have received (i) a duly completed amendment payment of all expenses required to UCC financing statementbe paid or reimbursed by any Loan Party under or in connection with this Amendment, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed including those expenses set forth in blank and otherwise satisfactory in form and substance to Administrative Agent)Section 12 hereof, in each case reflecting case, to the recent name change extent invoiced in reasonable detail prior to the date hereof. Other than the conditions set forth in this Section 4, there are no other conditions (express or implied) to the Incremental Term Loan Effective Date. For purposes of Company.
C. determining compliance with the conditions specified in this Section 4, the Incremental Term Lender shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Incremental Term Lender under this Amendment unless the Administrative Agent shall have received cover sheets or other documents or instruments required notice from the Incremental Term Lender prior to be filed in order to create or perfect Liens in all intellectual property of Company and the Incremental Term Loan Effective Date specifying its Subsidiaries in the United Statesobjection thereto.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Incremental Term Loan Amendment (MACOM Technology Solutions Holdings, Inc.)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon is subject to the satisfaction of all in full, of the following conditions precedent (the first date of satisfaction of on which all such conditions have been satisfied being referred to herein as called the “First Amendment "Effective Date”"):
A. On or before (A) the First Agent shall have received executed counterparts of this Amendment, which, when taken together, bear the signatures of the Borrower, the Agent and the Lenders; 2
(B) The Agent shall have received for each Lender a promissory note identical to the Note currently held by such Lender but in the amount of its Commitment after giving effect to this Amendment (each a "New Note");
(C) The Lenders shall have received a favorable written opinion of Jamex X. Xxxxxxx, Xxq., Assistant General Counsel and Assistant Secretary for the Borrower, dated the Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments addressed to the Organizational Documents Lenders, (i) covering the matters set forth in Section 3.1 of Company the Credit Agreement in respect of the Borrower, Sections 3.2 and 3.6 (which in the case of Sections 3.2(b)(i) and 3.6 may be to the best knowledge of such counsel after due inquiry), and (ii) to the effect that (x) this Amendment and the New Notes have been duly executed on or after February 19, 2008, in each case, certified and delivered by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of CompanyBorrower and, together with a good standing certificate from the Secretary of State Credit Agreement as hereby amended, constitute the legal, valid and binding obligations of the State Borrower, enforceable in accordance with their respective terms (subject, as to enforcement of Delawareremedies, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and to moratorium laws from time to time in effect) and (y) no consent or approval of its Board of Directors approving and authorizing any governmental authority or regulatory body to the execution, delivery, delivery and performance of this AmendmentAgreement or the New Notes or to the borrowings thereunder is required by law, or if any such consent or approval is necessary it has been obtained, which opinion shall be satisfactory to Morgxx, Xxxxx & Xockius LLP, special counsel for the Pledge Agreement Amendment (as defined below) and the Deed of TrustLenders, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent D) The Lenders shall have received (i) a certificate of the secretary or an Assistant Secretary of the Borrower, dated the Effective Date and certifying (1) that attached thereto is a true and complete copy of resolutions duly completed amendment adopted by the Board of Directors of the Borrower authorizing borrowings by the Borrower in an amount not to UCC financing statementexceed $450,000,000 and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (2) that neither the Certificate of Incorporation nor the By-laws of the Borrower have been amended since December 22, 2995 and (3) as to the incumbency and specimen signature of each officer of the Borrower executing this Amendment, the New Notes or any other document delivered in connection herewith or therewith (such certificate to contain a certification by another officer of the Borrower as to the incumbency and specimen signature of the Secretary or such Assistant Secretary signing such certificate); and (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or such other documents an any Lender or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of JonesMorgxx, WalkerXxxxx & Xockxxx XXX, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., special counsel for Companythe Lenders, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.; and
E. On or before the First (E) all legal matters incident to this Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counselMorgxx, and Administrative Agent and such Xxxxx & Xockius LLP, special counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestfor the Lenders.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date (the “Amendment No. 2 Effective Date”) that each of the following conditions precedent (has been fulfilled as determined by the date Agent:
a. This Amendment shall have been duly executed and delivered by Holdings, the Borrowers, each L/C Lender, the Issuing Bank and the Agent, and the Agent shall have received counterparts hereof that, when taken together, bear the signatures of satisfaction each of such conditions being referred to herein as the “First Amendment Effective Date”):other parties hereto.
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) b. The Agent’s receipt of the following, each, each of which shall be originals or pdf copies (followed promptly by originals) unless otherwise notedspecified, dated each properly executed by an Authorized Officer of the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware signing Loan Party (or, if such document is of a type that may not be so certifiedapplicable, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delawaresigning L/C Lender), each dated as of the Amendment No. 2 Effective Date (or, in the case of certificates of governmental officials, a recent date prior before the Amendment No. 2 Effective Date) and each in form and substance satisfactory to Agent:
i. a reaffirmation agreement (the “Amendment No. 2 Reaffirmation Agreement”) reaffirming (i) the guaranty and the liens granted under the Guarantee and Collateral Agreement duly executed and delivered by each Loan Party party to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving Guarantee and authorizing Collateral Agreement and (ii) the execution, delivery, and performance of this Amendment, liens granted under the Pledge Collateral Agreement Amendment (as defined below) in the Amended LC Facility Agreement).
ii. a perfection certificate with respect to the Borrowers and the Deed other Loan Parties (the “Amendment No. 2 Perfection Certificate”).
iii. such certificates of Trustresolutions or other action, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates and/or other certificates of its officers executing this Amendment, Authorized Officers of each Loan Party and each L/C Lender as the Pledge Agreement Amendment and Agent may reasonably require evidencing (A) the Deed authority of Trust; and
4. Executed copies of each Loan Party or L/C Lender to enter into this Amendment and the First other documents or instruments executed or to be executed in connection with this Amendment to Pledge which such Loan Party or L/C Lender is a party or is to be a party and Security Agreement dated (B) the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Amendment and such other documents to which such Loan Party is a party or is to be a party;
iv. copies of each Loan Party’s and L/C Lender’s organization or other governing documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party or L/C Lender is duly organized or formed, and that each Loan Party or L/C Lender is validly existing and in good standing in its jurisdiction of organization;
(A) an opinion of in house counsel to Holdings and of one or more special or local counsel to Holdings, the Borrowers, and the other Loan Parties, addressed to the Agent and each Lender as to such matters as the Agent may reasonably request and (B) an opinion of counsel to the L/C Lenders, addressed to the Agent and Issuing Bank as to such matters as the Agent may reasonably request;
vi. a certificate signed by an Authorized Officer of Holdings and the Borrowers certifying (A) the conditions specified in Section 5.b. have been satisfied or will be substantially simultaneously with the Amendment No. 2 Effective Date, (B) the representations and warranties made by each Loan Party in or pursuant to this Amendment (including Sections 2, 5.c and 5.d hereof) and the other Loan Documents are true and correct on and as of the date hereof between Companyin all material respects, its Subsidiaries before and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules after giving effect to the Pledge AgreementAmendment, as though made on and as of such date, except to the extent that (a) such representations or warranties are qualified by a materiality standard, in which case they shall be true and correct in all respects, and (iiib) certificates such representations or warranties expressly relate to an earlier date (in which certificates case such representations and warranties shall be accompanied by irrevocable undated stock powers, duly endorsed true and correct in blank and otherwise satisfactory in form and substance to Administrative Agentall material respects as of such earlier date), (C) both immediately before and immediately after giving effect to the Amendment, no event has occurred and is continuing that constitutes a Default or an Event of Default, (D) that no Collateral Coverage Event (as defined in the Indenture for the Existing Second Lien Notes) shall exist as of the date hereof, (E) to the Solvency of the Loan Parties, taken as a whole, as of the Amendment No. 2 Effective Date after giving effect to the transactions contemplated hereby, (F) that the Amendment No. 2 Perfection Certificate is true and correct in all material respects, and (G) that attached to such certificates are the true and correct executed copies of the Guarantee and Collateral Agreement and the Existing Intercreditor Agreement;
vii. results of searches or other evidence reasonably satisfactory to the Agent (in each case reflecting the recent name change dated as of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance a date reasonably satisfactory to Administrative the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 6.02(a) of the Amended LC Facility Agreement;
viii. such other customary certificates, documents or consents as the Agent reasonably may require; and
ix. an Existing Agent Acknowledgement and Consent, duly executed by the Existing Agent and its counsel, dated as of the First Amendment Effective DateHoldings, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably requestBorrowers.
E. On c. Since January 30, 2017, there shall not have been any event, circumstance or before effect that has had or could reasonably be expected to have, individually or in the First aggregate, a Material Adverse Effect.
d. After giving effect to this Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby hereunder, Capped Excess Availability shall not be less than $150,000,000.
e. The Borrowers shall have paid all fees, expenses and all documents incidental thereto not previously found acceptable by Administrative other amounts due and owing to the Agent, acting on behalf of Lenders, the Issuing Bank and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall the L/C Lenders that have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestexecuted this Amendment.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Sears Holdings Corp)
Conditions to Effectiveness. The effectiveness of the amendments to the Loan Agreement set forth in Section 1 5 and the obligations of this Amendment shall become effective only upon the 2024 Repricing Lenders to make 2024 Repricing Advances are subject to the prior or substantially concurrent satisfaction (or waiver by 2024 Repricing Lenders holding a majority of all the 2024 Repricing Commitments, as of the 2024 Repricing Effective Date) of the following conditions precedent (the date of such satisfaction of such conditions being referred to herein as or waiver, the “First Amendment 2024 Repricing Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (a) The Administrative Agent (or to its counsel) shall have received from each of the Lead Borrower, the Co-Borrower and each other Loan Party, a counterpart of this Amendment signed on behalf of such party.
(b) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for shall have received a certificate of an Officer of each Lender) the following, each, unless otherwise noted, Loan Party dated the First Amendment 2024 Repricing Effective Date:
1. Copies (i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Lead Borrower, Co-Borrower or Carnival plc, certifying there have been no changes to the Organizational certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Effective Date,
(ii) either (x) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official) or (y) with respect to any Loan Party other than the Lead Borrower or Co-Borrower, attaching a “bring-down” certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) (or in the case of the Italian Guarantor, a “certificato di vigenza”) of such Loan Party as of a recent date,
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect at the 2024 Repricing Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Lead Borrower or Co-Borrower, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Effective Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or its managing general partner, managing member, sole member or other equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment and any other Loan Documents executed or to be executed in connection with the transactions contemplated hereby, and granting the necessary powers to individuals to attend to any necessary filings or formal amendments required in connection with the “Collateral” to which such Loan Party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect at the 2024 Repricing Effective Date,
(v) either (x) certifying as to the incumbency and specimen signature of Company each officer executing any Loan Document executed in connection with this Amendment on behalf of such Loan Party or after February 19(y) with respect to any Loan Party other than the Lead Borrower or Co-Borrower, 2008certifying there have been no changes to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Amendment on behalf of such Loan Party since the Effective Date, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such Person, threatening the existence of such Loan Party.
(c) The Administrative Agent shall have received, on behalf of itself and the 2024 Repricing Lenders, a written opinion of (i) Xxxx, Xxxxx, Rifkind, Xxxxxxx & Xxxxxxxx LLP and (ii) General Counsel of the Company, in each case, certified by (A) dated the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State date of the State of Delaware2024 Repricing Effective Date, each dated a recent date prior (B) addressed to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) Administrative Agent and the Deed of Trust, certified as of Lenders at the First Amendment 2024 Repricing Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iiiC) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to the Administrative Agent and its counsel, dated covering such matters relating to this Amendment as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may shall reasonably request.
E. On or before (d) The Administrative Agent and each other Person shall have received all fees which the First Amendment Effective Date, all corporate and other proceedings taken or Borrowers shall have agreed in writing to be taken pay to such Persons in connection with the transactions contemplated hereby by this Amendment at or prior to the 2024 Repricing Effective Date and, to the extent invoiced at least three Business Days prior to the 2024 Repricing Effective Date, reimbursement or payment of all reasonable and all documents incidental thereto not previously found acceptable by Administrative Agentdocumented out-of-pocket expenses (including reasonable fees, acting on behalf charges and disbursements of Lenders, and its counsel shall be satisfactory in form and substance to the Administrative Agent and such counsel, and required to be reimbursed or paid by the Borrowers hereunder or under any Loan Document at or prior to the 2024 Repricing Effective Date).
(e) The Lead Borrower shall have delivered to the Administrative Agent a certificate from an Officer of the Lead Borrower dated as of the date of the 2024 Repricing Effective Date, to the effect set forth in Sections 3(c) and such counsel 3(d) hereof.
(f) The Administrative Agent shall have received all such counterpart originals or certified copies of such documents as a solvency certificate in a form reasonably satisfactory to the Administrative Agent may reasonably requestsigned by a senior financial officer of the Lead Borrower confirming the solvency of the Company and its Subsidiaries on a consolidated basis as of the 2024 Repricing Effective Date (both immediately prior to and immediately after giving effect to this Amendment).
F. Company (g) The Administrative Agent shall pay to each Lender executing this Amendment have received on or before prior to three Business Days prior to the close 2024 Repricing 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 USA PATRIOT Act, to the extent such information has been requested by the Administrative Agent not less than five Business Days prior to the 2024 Repricing Effective Date.
(h) The Administrative Agent shall have received a Notice of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan ExposureBorrowing.
Appears in 1 contract
Samples: Term Loan Agreement (Carnival PLC)
Conditions to Effectiveness. (a) The obligations of each Tranche 7 Term Lender to make the Tranche 7 Term Loans pursuant to Section 1 of this 1.1 above on the Restatement Effective Date, and the Amendment and Restatement, shall become effective only upon as of the satisfaction of all of first date (the “Restatement Effective Date”) on which the following conditions precedent have been satisfied:
(i) The Administrative Agent (or its counsel) shall have received duly executed counterparts hereof that, when taken together, bear the date signatures of satisfaction of such conditions being referred to herein as (i) the Borrower, (ii) each Tranche 7 Term Lender and each other Lender party hereto, collectively constituting the “First Amendment Effective Date”):Required Lenders” (determined, for the avoidance of doubt, immediately after the consummation of the Refinancing), and (iii) the Administrative Agent.
A. On or before (ii) After giving effect to the First Amendment borrowing of the Tranche 7 Term Loans on the Restatement Effective Date, Company the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Original Credit Agreement shall deliver be satisfied on and as of the Restatement Effective Date, and the Tranche 7 Term Lenders shall have received a certificate of a Financial Officer dated the Restatement Effective Date to Lenders such effect.
(or to iii) The Collateral and Guarantee Requirement shall be satisfied.
(iv) The Administrative Agent for Lenders with sufficient originally executed copiesshall have received a favorable legal opinion of each of (i) Skadden, where appropriateArps, for each Lender) the followingSlate, eachXxxxxxx & Xxxx LLP, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments counsel to the Organizational Documents Borrower and (ii) Xxxx Xxxxxxxxx, General Counsel of Company executed on or after February 19, 2008the Borrower, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior case addressed to the First Amendment Administrative Agent and the Lenders under the Credit Agreement, including the Tranche 7 Term Lenders, and dated the Restatement Effective Date;
2. Resolutions of its Board of Directors approving and authorizing , in substantially the execution, delivery, and performance of this Amendment, forms thereof delivered in connection with the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Restatement Agreement dated as of February 21, 2013, to the date hereof between CompanyOriginal Credit Agreement, its Subsidiaries modified, however, to address the Tranche 7 Term Loans, the Amendment and Restatement and this Restatement Agreement, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Restatement Effective Date as the Administrative Agent (may reasonably request, and otherwise reasonably satisfactory to the “Pledge Agreement Amendment”)Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
B. (v) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering this Restatement Agreement and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(vi) The Administrative Agent shall have received (ix) a duly completed amendment borrowing request in a form reasonably acceptable to UCC financing statementthe Administrative Agent requesting that the Tranche 7 Term Lenders make the Tranche 7 Term Loans (including by way of Conversions, as contemplated hereby) on the Restatement Effective Date and (y) a notice of prepayment of the Tranche 6 Term Loans complying with Section 2.11(f) of the Credit Agreement (which may be conditioned on the occurrence of the Restatement Effective Date, as contemplated by such Section).
(vii) After giving effect to the borrowing of the Tranche 7 Term Loans on the Restatement Effective Date, the Borrowing Base Amount on the Restatement Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Restatement Effective Date, (iiB) updated schedules to the Pledge Agreement, LC Exposure on the Restatement Effective Date and (iiiC) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change aggregate principal amount of Company.
C. Additional Senior Debt outstanding on the Restatement Effective Date. The Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property a completed Borrowing Base Certificate dated the Restatement Effective Date and signed by a Financial Officer of Company and its Subsidiaries in the United StatesBorrower.
D. Lenders (viii) Each Subsidiary Guarantor shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Companyentered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
(ix) The principal of and accrued and unpaid interest on all Existing Term Loans and all amounts payable pursuant to Section 2.16 of the Credit Agreement in respect of the prepayment or Conversion of Existing Term Loans, shall have been (or substantially simultaneously with the effectiveness of this Restatement Agreement shall be) paid in full, and the Administrative Agent shall have received evidence reasonably satisfactory to it of such payment; provided that the principal of Existing Term Loans that are Converted will not be paid in cash but will be deemed to have been paid as a result of such Conversion.
(x) To the extent invoiced prior to the Restatement Effective Date, the Administrative Agent shall have received payment or reimbursement of its reasonable out-of-pocket expenses in connection with this Restatement Agreement, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
(xi) To the extent invoiced prior to the Restatement Effective Date, the Arrangers shall have received the payments and reimbursements referred to in Section 2.4.
(xii) At least three Business Days prior to the Restatement Effective Date, the Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA Patriot Act. The Administrative Agent may reasonably requestshall notify the Borrower, the Tranche 7 Term Lenders and the other Lenders of the Restatement Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendments effected hereby shall not become effective, and the obligations of the Tranche 7 Term Lenders hereunder to make the Tranche 7 Term Loans will automatically terminate, if each of the conditions set forth or referred to in Section 1.3 has not been satisfied at or prior to 5:00 p.m., New York City time, on April 29, 2014.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Conditions to Effectiveness. Section 1 of this Amendment The amendments set forth in Article II shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before ) when all of the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments conditions set forth in this Article III have been completed to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State reasonable satisfaction of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)Agent.
B. SECTION 3.1. The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementcounterparts hereof executed on behalf of the Borrower, (ii) updated schedules to all Lenders and the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. SECTION 3.2. The Administrative Agent shall have received cover sheets or other documents or instruments required to be filed an affirmation of the Guaranty from each of the Guarantors in order to create or perfect Liens in all intellectual property substantially the form of Company and its Subsidiaries in the United StatesExhibit A hereto.
D. Lenders SECTION 3.3. Each Person that is not a Lender that is to become a Revolving B Credit Lender (each of which shall be an Eligible Assignee) shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, executed a joinder agreement in form and substance satisfactory to the Administrative Agent, the Borrower and their respective counsel.
SECTION 3.4. The Administrative Agent shall have received, for the account of each Lender that shall have consented to this Amendment by not later than 5:00 p.m. (New York time) on April 9, 2010, a non-refundable amendment fee in the amount of 0.15% of each such Lender’s aggregate Commitments in effect immediately prior to the Amendment Effective Date.
SECTION 3.5. The Administrative Agent shall have received, for the account of each Revolving B Credit Lender, a non-refundable up front fee in the amount agreed between the Borrower and each such Revolving B Credit Lender.
SECTION 3.6. The Administrative Agent shall have received legal opinions substantially in the form of Exhibit B hereto.
SECTION 3.7. The Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment.
SECTION 3.8. The Administrative Agent (on behalf of the Lenders) shall be reasonably satisfied that it continues to have a valid and perfected first priority lien and security interest in the Collateral to the same extent as prior to the Amendment Effective Date.
SECTION 3.9. The Administrative Agent shall have received revised forecasts prepared by management of the Borrower, in form reasonably satisfactory to the Administrative Agent, of balance sheets, income statements and cash flow statements on a quarterly basis for fiscal year 2010 and on an annual basis thereafter during the term of the Facilities.
SECTION 3.10. There shall not have occurred since June 30, 2009 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect.
SECTION 3.11. The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and its counsel, dated as of (directly to such counsel if requested by the First Administrative Agent) to the extent invoiced prior to or on the Amendment Effective Date, plus such additional amounts of such fees, charges and setting forth the matters disbursements as Administrative Agent acting on behalf shall constitute its reasonable estimate of Lenders may reasonably request.
E. On or before the First Amendment Effective Datesuch fees, all corporate charges and other proceedings taken disbursements incurred or to be taken in connection with incurred by it through the transactions contemplated hereby closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and all documents incidental thereto not previously found acceptable by the Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request).
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment No. 3 Effective Date”):) on which:
A. On or before (a) the First Amendment Effective Date, Company shall deliver to Lenders Administrative Agent (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderits counsel) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate shall have received from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this AmendmentBorrower, the Pledge Agreement Amendment (as defined below) Required Lenders and the Deed of TrustAdministrative Agent, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies a counterpart of this Amendment and signed on behalf of each such party;
(b) the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower stating that the representations and warranties of the Borrower and each other Loan Party contained in Article III of the Existing Credit Agreement or any other Loan Document are true and correct in all material respects as of the Amendment No. 3 Effective Date; provided, that, to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(c) the Borrower shall have (i) a duly completed amendment reimbursed the Administrative Agent for the reasonable and documented out-of-pocket expenses incurred by it in connection with this Amendment invoiced at least three (3) Business Days prior to UCC financing statementthe Amendment No. 3 Effective Date (including the reasonable and documented fees, charges and disbursements of Cxxxxx Xxxxxx & Rxxxxxx LLP, counsel for the Administrative Agent) and (ii) updated schedules to the Pledge Agreement, paid all fees and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments expenses required to be filed in order paid on the Amendment No. 3 Effective Date pursuant to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counselEngagement Letter, dated as of January 29, 2024, between the First Borrower, Wxxxx Fargo Bank, N.A. and Wxxxx Fargo Securities, LLC;
(d) no Event of Default or Default shall have occurred and be continuing on the Amendment No. 3 Effective Date, and setting forth ; and
(e) the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel Borrower shall have received all such counterpart originals proceeds from a capital raise in the form of unsecured convertible debt securities, preferred Equity Interests or certified copies common Equity Interests of such documents as Administrative Agent may reasonably requestnot less than $50,000,000 (the “Amendment No. 3 Equity Contribution”).
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Tenth Amendment shall become effective only on the date (the “Tenth Amendment Effective Date”) upon the satisfaction of all which each of the following conditions precedent is satisfied:
(a) The Administrative Agent shall have received each of the date following:
(i) a Borrowing Request with respect to the Term B-5 Loans;
(ii) counterparts to this Tenth Amendment executed by the Borrower, the Subsidiary Guarantors, and each Term B-5 Lender;
(iii) a certificate from a Responsible Officer of the Borrower certifying satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):condition precedent set forth in Section 3(c);
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderiv) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies a written opinion of all amendments to the Organizational Documents of Company executed on or after February 19, 2008(x) Ropes & Gray LLP, in each caseits capacity as counsel for the Loan Parties and (y) Xxxxxxx LLP, certified by in its capacity as local Maryland counsel for the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of DelawareBorrower, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and addressed to the Administrative Agent and the Term B-5 Lenders;
(i) a certificate of each Loan Party, dated as of the “Pledge date hereof and executed by a secretary, assistant secretary or other similarly-titled Responsible Officer thereof, which shall certify (a) that attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization of such Loan Party, as applicable, certified by the relevant authority of its jurisdiction of organization, which certificate or articles of incorporation, formation or organization of such Loan Party, as applicable, have not been amended (except as attached thereto) since the date reflected thereon (or for Loan Parties other than the Borrower, if applicable, a certification that no change has been made to such documents of such Loan Party since the Seventh Amendment Effective Date), (b) that attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, as applicable, together with all amendments thereto as of the Tenth Amendment Effective Date (or for Loan Parties other than the Borrower, if applicable, a certification that no change has been made to such documents of such Loan Party since the Seventh Amendment Effective Date) and such by-laws or operating, management, partnership or similar agreement are in full force and effect, (c) that attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, manager or other applicable governing body authorizing the execution, delivery and performance of this Tenth Amendment and, in the case of the Borrower, the borrowing of the Term B-5 Loans, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect and (d) as to the incumbency and specimen signature of each officer, manager, director or authorized signatory executing this Tenth Amendment or any other Loan Document delivered by such Loan Party in connection therewith and (ii) a good standing (or equivalent) certificate for such Loan Party, as applicable, from the relevant authority of its jurisdiction of organization, dated as of a recent date; and
(vi) a solvency certificate in substantially the form of Exhibit O to the Existing Credit Agreement Amendment”(but with modifications to reflect the Tenth Amendment Effective Date) from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Borrower dated as of the Tenth Amendment Effective Date and certifying as to the matters set forth therein (after giving effect to the transactions contemplated by this Tenth Amendment to occur on the Tenth Amendment Effective Date).
B. (b) Prior to, or substantially concurrently with the funding of the Term B-5 Loans, (x) the Borrower shall have paid or caused to be paid to the Administrative Agent, for the account of each Term B-5 Lender, a fee in the amount separately agreed between the Tenth Amendment Arrangers and the Borrower and (y) the Administrative Agent and the Tenth Amendment Arrangers shall have received (i) a duly completed amendment all fees required to UCC financing statementbe paid by the Borrower on the Tenth Amendment Effective Date as separately agreed among the Borrower, the Administrative Agent and the applicable Tenth Amendment Arrangers and (ii) updated schedules all expenses required to be reimbursed by the Borrower under the Existing Credit Agreement in connection with this Tenth Amendment for which invoices have been presented at least three Business Days prior to the Pledge Agreement, Tenth Amendment Effective Date or such later date to which the Borrower may agree (including the reasonable fees and (iii) certificates (which certificates shall expenses of legal counsel required to be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agentpaid), in each case reflecting on or before the recent name change Tenth Amendment Effective Date, in each case, which amounts may be offset against the proceeds of Companythe Term B-5 Loans.
C. (c) The representations and warranties of the Borrower set forth in Article 3 of the Existing Credit Agreement and the representations and warranties of the applicable Loan Parties set forth in the other Loan Documents (including Section 2 above) shall be true and correct in all material respects on and as of the Tenth Amendment Effective Date; provided that (A) in the case of any representation which expressly relates to a given date or period, such representation shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be and (B) if any representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such representation shall be true and correct in all respects.
(d) The Administrative Agent shall have received cover sheets or all documentation and other documents or instruments required information reasonably requested with respect to be filed any Loan Party in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in writing by the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as or any Term B-5 Lender at least seven (7) Business Days in advance of the First Tenth Amendment Effective Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and setting forth anti-money laundering rules and regulations, including the matters as Administrative Agent acting on behalf of Lenders may reasonably requestUSA PATRIOT Act.
E. On (e) The proceeds of the Term B-5 Loans shall have been used on, or before substantially concurrently with, the First Tenth Amendment Effective Date, Date to prepay all corporate or a portion of the outstanding principal amount of 2019 New Term Loans and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestTerm B-3 Loans.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon upon, and shall be subject to, the prior or simultaneous satisfaction of all each of the following conditions precedent in a manner reasonably satisfactory to Xxxx (the date of satisfaction of when all such conditions are so satisfied being referred to herein as the “First Amendment Effective Date”):
A. On or before Section 3.1 The Parties shall have executed and delivered this Amendment and Xxxx and the First Company shall have executed and delivered the Amendment Fee Letter, dated as of the Effective Date, .
Section 3.2 The Company and the Guarantor shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) have provided certified board resolutions authorizing the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents S&O Agreement contemplated hereby.
Section 3.3 The Company and the Guarantor shall have each delivered to Xxxx a certificate signed by an appropriate officer certifying as its organizational documents, incumbency and resolutions, and attaching a copy of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary its jurisdiction of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)organization.
B. Administrative Agent Section 3.4 The Company shall have received (i) a duly completed amendment delivered to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change Xxxx an opinion of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Companycounsel, in form and substance reasonably satisfactory to Administrative Agent and its counselXxxx, dated as of the First Amendment Effective Date, and setting forth the covering such matters as Administrative Agent acting on behalf of Lenders may Xxxx shall reasonably request.
E. On Section 3.5 No action or before the First Amendment Effective Dateproceeding shall have been instituted nor shall any action by a Governmental Authority be threatened, all corporate and other proceedings taken nor shall any order, judgment or decree have been issued or proposed to be taken issued by any Governmental Authority as of the Effective Date to set aside, restrain, enjoin or prevent the transactions and performance of the obligations contemplated by this Amendment.
Section 3.6 All representations and warranties of the Company and its Affiliates contained in this Amendment shall be true and correct on and as of the Effective Date and (ii) no Default or Event of Default in respect of the Company shall have occurred, and the Company shall have delivered to Xxxx a certificate in respect of the foregoing.
Section 3.7 Since December 31, 2021, there shall not have been the occurrence of any Material Adverse Effect.
Section 3.8 Xxxx shall have received from the Company payment of or reimbursement for all fees (including fees contemplated by the Amendment Fee Letter) costs, and expenses (including all reasonable attorneys’ fees and expenses which shall be directly paid by the Company to Aron’s counsel) incurred by Xxxx in connection with the transactions contemplated hereby negotiation, preparation and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf execution of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestthis Amendment.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Supply and Offtake Agreement (Par Pacific Holdings, Inc.)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment and the obligations of the Term B-1 Lenders to make the Term B-1 Loans shall become effective only upon on the satisfaction of all of Amendment No. 1 Effective Date, which shall be the first Business Day on which the following conditions precedent are satisfied or waived:
(i) the date Administrative Agent (or its counsel) shall have received counterparts of satisfaction this Amendment or Consent that, when taken together, bear the signatures of such conditions being referred (A) each Cashless Option Lender and each Post-Closing Option Lender, (B) the Administrative Agent, (C) the Additional Term B-1 Lender, (D) the Borrower and (E) each Guarantor;
(ii) the Administrative Agent shall have received a notice of Borrowing for the Additional Term B-1 Loans (whether in writing or by telephone) in accordance with the Credit Agreement;
(iii) the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(A) a favorable opinion of Xxxxx Day, counsel for the Loan Parties, in a form and substance reasonably satisfactory to herein the Administrative Agent;
(B) a certificate from a Responsible Officer of the each Loan Party dated as of the “First Amendment Effective Date”):
A. On or before the First Amendment No. 1 Effective Date, Company shall deliver and attaching the documents referred to Lenders in clause (or to C) below;
(C) the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendershall have received (i) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State resolutions of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the execution, delivery, delivery and performance of this Amendmentthe Amendment (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the Pledge Agreement Amendment (as defined below) and the Deed extensions of Trustcredit contemplated hereunder, certified as of the First Amendment No. 1 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendmentamendment and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
3. Signature (D) before and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of after giving effect to this Amendment and the First Amendment borrowing of or exchange into the Term B-1 Loans and to Pledge the application of any proceeds therefrom (i) no Default or Event of Default shall exist and Security (ii) all of the representations and warranties contained in the Credit Agreement dated and in the other Loan Documents shall be true and correct in all material respects at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(E) the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received from the Borrower an Officer’s Certificate certifying as to compliance with the preceding clause (iD); and
(F) a duly completed amendment the representations and warranties of each Loan Party set forth in Section 5 below shall be true and correct in all material respects;
(iv) the fees in the amounts previously agreed in writing by Citigroup Global Markets Inc. (the “Amendment No. 1 Arranger”) to UCC financing statementbe received on the Amendment No. 1 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (including the reasonable fees, (ii) updated schedules charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx llp, as counsel to the Pledge Agreement, and (iiiAmendment No. 1 Arranger) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken incurred in connection with the transactions contemplated hereby for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 1 Effective Date shall, upon the Borrowing of the Term B-1 Loans, have been, or will be substantially simultaneously, paid in full; and
(v) the Administrative Agent shall have received a “Life-of-Loan” flood determination notice for each real property encumbered by a Mortgage and all documents incidental thereto not previously found acceptable if such real property is located in a special flood hazard area, (x) a notice about special flood hazard area status and flood disaster assistance duly executed by Administrative Agent, acting on behalf the Borrower and (y) evidence of Lenders, and its counsel shall be satisfactory insurance as required by the Credit Agreement in form and substance satisfactory to the Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestAgent.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Amendment Agreement (Polyone Corp)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment and the establishment of the Incremental Term B-1 Commitments and the obligations of the Incremental Term B-1 Lender to make the Incremental Term B-1 Loans shall become effective only upon on the satisfaction of all of first Business Day (such date, the “Amendment No. 2 Effective Date”) on which the following conditions precedent are satisfied or waived:
(i) the date Administrative Agent (or its counsel) shall have received counterparts of satisfaction this Amendment that, when taken together, bear the signatures of such conditions being referred (A) the Administrative Agent, (B) the Incremental Term B-1 Lender, (C) the Borrower and (D) each Guarantor;
(ii) the Administrative Agent shall have received a notice of Borrowing for the Incremental Term B-1 Loans in accordance with the Credit Agreement;
(iii) the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(A) a favorable opinion of Xxxxx Day, counsel for the Loan Parties, in a form and substance reasonably satisfactory to herein the Administrative Agent;
(B) a certificate from a Responsible Officer of the each Loan Party dated as of the “First Amendment Effective Date”):
A. On or before the First Amendment No. 2 Effective Date, Company shall deliver and attaching the documents referred to Lenders in clause (or to C) below;
(C) the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendershall have received (i) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State resolutions of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the execution, delivery, delivery and performance of this Amendmentthe Amendment (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the Pledge Agreement Amendment (as defined below) and the Deed extensions of Trustcredit contemplated hereunder, certified as of the First Amendment No. 2 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendmentamendment and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
3. Signature (D) (x) before and incumbency certificates of its officers executing after giving effect to this Amendment, the Pledge Agreement Amendment establishment of the Incremental Term B-1 Commitments and the Deed borrowing of Trust; and
4. Executed copies of this Amendment Incremental Term B-1 Loans and the First Amendment application of any proceeds therefrom (i) no Default or Event of Default shall exist and (ii) all of the representations and warranties contained in this Amendment, the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects at such time (unless stated to Pledge relate to a specific earlier date, in which case such representations and Security Agreement dated warranties shall be true and correct in all material respects as of such earlier date) and (y) the date hereof between Company, its Subsidiaries and Administrative Agent condition set forth in Section 2.14(a)(iv) of the Credit Agreement is satisfied with respect to this Amendment;
(E) the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received from the Borrower an Officer’s Certificate certifying as to compliance with the preceding clause (iD) a duly completed amendment above; and
(F) the representations and warranties of each Loan Party set forth in Section 4 below shall be true and correct in all material respects;
(iv) the fees in the amounts previously agreed in writing by the Amendment No. 2 Arrangers to UCC financing statementbe received on the Amendment No. 2 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (including the reasonable fees, (ii) updated schedules charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, as counsel to the Pledge Agreement, and (iiiAmendment No. 2 Arranger) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken incurred in connection with the transactions contemplated hereby for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 2 Effective Date shall, upon the Borrowing of the Incremental Term B-1 Loans, have been, or will be substantially simultaneously, paid in full; and
(v) the Administrative Agent shall have received a “Life-of-Loan” flood determination notice for each real property encumbered by a Mortgage and all documents incidental thereto not previously found acceptable if such real property is located in a special flood hazard area, (x) a notice about special flood hazard area status and flood disaster assistance duly executed by Administrative Agent, acting on behalf the Borrower and (y) evidence of Lenders, and its counsel shall be satisfactory insurance as required by the Credit Agreement in form and substance satisfactory to the Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestAgent.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Polyone Corp)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all first date when each of the following conditions precedent have been satisfied (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before (a) the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally shall have received (i) this Amendment, duly executed copiesand delivered by the Borrower, where appropriatethe Issuers, for each Lenderthe Swing Loan Lender and the Administrative Agent, (ii) (A) New Revolving Credit Lender Addenda (if any), in the followingform attached hereto as Annex A (the “New Revolving Credit Lender Addendum”) and (B) Extending Revolving Credit Lender Consents, each, unless otherwise noted, dated in the First Amendment Effective Date:
1. Copies of all amendments to form attached hereto as Annex B (the Organizational Documents of Company executed on or after February 19, 2008“Extending Revolving Credit Lender Consents”), in each case, certified duly executed and delivered by a combination of new and existing Lenders (the “Consenting Lenders”) whose aggregate Revolving Credit Commitments is equal to $1,500,000,000 and (iii) a Reaffirmation Agreement, in the form attached hereto as Annex C, duly executed and delivered by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, Borrower and each dated a recent date prior to the First Amendment Effective DateGuarantor;
2. Resolutions of its Board of Directors approving and authorizing (b) the executionAdministrative Agent shall have received legal opinions with respect to each Loan Party, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified dated as of the First Amendment Effective Date by and addressed to the secretary or similar officer as being Administrative Agent, the Lenders and the Issuers, in full force form and effect without modification or amendmentsubstance reasonably acceptable to the Administrative Agent;
3. Signature and incumbency certificates of its officers executing this Amendment, (c) the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment copy of a certificate from the Secretary of State or other applicable office in the jurisdiction of incorporation or organization of each Loan Party attesting to UCC financing statement, the good standing (or equivalent) of such Loan Party (where such concept is applicable) and (ii) updated schedules to a certificate from the Pledge AgreementSecretary or Assistant Secretary of each Loan Party, dated as of the Amendment Effective Date and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to the Administrative Agent Agent, certifying (A) the names and its counseltrue signatures of each officer of such Loan Party that has been authorized to execute and deliver the Amendment and any other document required to be delivered by or on behalf of such Loan Party, dated (B) the articles of incorporation or other equivalent Constituent Document of such Loan Party as in effect on the date of such certification (or, alternatively, certifying that there have been no amendments or other modifications made to such Constituent Document since September 12, 2019 or August 13, 2020, as applicable), (C) the bylaws or other equivalent Constituent Document of such Loan Party as in effect on the date of such certification (or, alternatively, certifying that there have been no amendments or other modifications made to such Constituent Document since September 12, 2019 or August 13, 2020, as applicable) and (D) resolutions of such Loan Party’s Board of Directors, sole member, managing member, general partner, or other approving body, as applicable, authorizing the execution, delivery and performance of this Amendment and any other document required to be delivered by, or on behalf of, such Loan Party, in each case as of the First Amendment Effective Date;
(d) all fees and expenses (including, to the extent invoiced and delivered to the Borrower at least two Business Days prior to the Amendment Effective Date, or such later date as may be agreed by the Borrower in its reasonable discretion, the reasonable and setting forth the matters as Administrative Agent acting on behalf documented fees and expenses of Lenders may reasonably request.
E. On or before the First Amendment Effective DateWeil, all corporate and other proceedings taken or to be taken Gotshal & Xxxxxx LLP) payable in connection with this Amendment or otherwise required to be paid pursuant to the transactions contemplated hereby Existing Credit Agreement shall have been paid in full;
(e) (i) each Non-Consenting Lender (as defined below) shall have received payments of all Loans held by it and all documents incidental accrued and unpaid interest and fees with respect thereto not previously found acceptable through the date of this Amendment as contemplated by Section 4(c) below;
(f) the Borrower shall have paid to the Administrative Agent, acting on behalf (i) for the ratable benefit of Lenders, and its counsel shall be satisfactory in form and substance each Consenting Lender that has delivered an unconditioned Extending Revolving Credit Lender Consent to the Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business prior to 12:00 p.m. (San Francisco New York City time) on February 26March 15, 20092022, an amendment fee in an amount equal to 1.00.125% of the aggregate amount of such Consenting Lender’s Revolving Loan ExposureCredit Commitments on the Amendment Effective Date (outstanding immediately after giving effect to Amendment Effective Date);
(g) the Borrower shall have delivered the Borrowing Base Certificate required to be delivered pursuant to Section 6.9(a) of the Existing Credit Agreement, giving effect to this Amendment, for the month ended January 31, 2022 and after giving effect to any Loans or Letters of Credit requested to be made or Issued on the Amendment Effective Date and the use of proceeds thereof, the Revolving Credit Outstandings shall not exceed the Maximum Credit at such time;
(h) each of the representations and warranties set forth in Section 5 hereof shall be true and correct as of the Amendment Effective Date;
(i) after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing as of the Amendment Effective Date; and
(j) the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower, certifying the conditions set forth in Sections 3(h) and 3(i) have been satisfied as of the Amendment Effective Date.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment and the New Revolving Facility and the New Term Loan Facility shall become effective only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as date, the “First Amendment Effective Date”):
A. On or before (a) receipt by the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for of (x) executed signature pages to this Amendment from the Borrower, the other Loan Parties party to the Guarantee and Collateral Agreement (the Borrower and such Loan Parties, collectively, the “Reaffirming Parties”), the Issuing Lender and the Refinancing Revolving Lenders, (y) executed Lender Addenda from the Continuing Term Lenders with sufficient originally and the Additional Term Lenders and (z) executed copiessignature pages to this Agreement from the Incremental Amended Term Lenders;
(b) receipt by the Administrative Agent of a customary closing certificate, where appropriate, for each Lendersubstantially in the form attached hereto as Exhibit B;
(c) (i) the followingaccuracy in all material respects (and in all respects if qualified by materiality) of the representations and warranties of each Loan Party set forth in the Loan Documents (except in the case of any such representation and warranty that specifically relates to an earlier date, eachin which case such representation and warranty shall be true and correct on and as of such earlier date) and (ii) there being no Default or Event of Default in existence at the time of, unless otherwise notedor after giving effect to, dated this Amendment;
(d) the First Amendment Effective Date:
1. Copies payment of all amendments fees and out of pocket expenses due to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by Administrative Agent and the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective DateLead Banks;
2. Resolutions of its Board of Directors approving and authorizing (e) the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment the legal opinion of Xxxxxxxxx Xxxxxxx, P.A., counsel to UCC financing statementthe Loan Parties, substantially in the form of Exhibit E–1 to the Credit Agreement and (ii) updated schedules the legal opinion of Xxxxxx X. Xxxx, Esq., general counsel of the Loan Parties, substantially in the form of Exhibit E–2 to the Pledge Credit Agreement, and ;
(iiif) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets a solvency certificate of the chief financial officer of the Borrower (or other documents or instruments required senior executive officer of the Borrower satisfactory to be filed the Administrative Agent) in order form reasonably satisfactory to create or perfect Liens in all intellectual property the Administrative Agent certifying as to the solvency of Company the Borrower and its Subsidiaries in considered as a whole after giving effect to the United States.New Revolving Facility and the New Term Facility and the transactions contemplated hereby;
D. Lenders (g) the Administrative Agent shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably evidence satisfactory to it that all outstanding Revolving Credit Loans and Term Loans, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Credit Lenders and the Term Lenders, as the case may be, shall be repaid or paid (it being understood, however, that (x) such amounts may be paid with proceeds of the New Revolving Facility and the New Term Facility, as the case may be, and (y) any Letters of Credit may continue to be outstanding hereunder);
(h) the Administrative Agent and its counsel, dated as shall have received a certificate of a Responsible Officer of the First Amendment Effective Date, Borrower demonstrating compliance with the conditions set forth in clause (i) of Section 2.19(d) of the Credit Agreement and setting forth in clause (i) of Section 2.20(b) of the matters as Credit Agreement; and
(i) the Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before shall have received, at least 5 days prior to the First Amendment Effective Date, all corporate documentation and other proceedings taken information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act. Notwithstanding any other provisions of this Amendment to the contrary, the Administrative Agent may appoint a fronting lender to act as the sole Additional Term Lender and/or Incremental Amended Term Lender for purposes of facilitating funding on the Effective Date. Accordingly, any Lender Addendum (Additional Term Lender) or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable other signature page submitted by Administrative Agent, acting or on behalf of Lenders, and its counsel shall an Additional Term Lender or Incremental Amended Term Lender other than such fronting lender will be satisfactory in form and substance to deemed ineffective unless accepted by the Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestin its sole discretion.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: 2018 Refinancing Amendment (Sba Communications Corp)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon upon:
(a) delivery to the satisfaction Collateral Agent of all of the following conditions precedent ten (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient 10) originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise notedcopies of this Amendment, dated the First Amendment Effective Date:, as executed by the Borrowers and Guarantors;
1. Copies (b) the Collateral Agent having received executed forms of the attached Instructing Group Consents from each of the Lenders constituting Majority Lenders;
(c) delivery to the Collateral Agent of ten originally executed copies of the Intercreditor Agreement (as defined below) in form and in substance satisfactory to the Lenders and Lenders' counsel (Xxxxxx Xxxxxxx);
(d) delivery to the Collateral Agent of two certified copies of the 2003 Note Purchase Agreement;
(e) delivery to the Collateral Agent of all amendments security and documents required to be delivered under the Agreement to the Organizational Documents Collateral Agent and Lenders in respect of Company the reorganizations of the [PROPERTY MANAGEMENT COMPANIES (i.e. CAMCO] and the [XXXXX GROUP OF COMPANIES];
(f) delivery to the Collateral Agent of certificates executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar an officer of Company, together with a good standing certificate from the Secretary of State each of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board Borrowers and Guarantors certifying that their respective Boards of Directors approving have each adopted resolutions that are in full force and effect, without modification or amendment, authorizing the execution, delivery, delivery and performance by such Borrower or Guarantor of this Amendment, the Pledge Intercreditor Agreement Amendment (as defined below) ), the 2003 Note Purchase Agreement and the Deed of Trust, certified as of the First Omnibus Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of September 29, 2003, between, amongst others, the date hereof between CompanyGuarantors, Borrowers and the 2003 Noteholders;
(g) the Collateral Agent being satisfied with and having completed all due diligence which it considers necessary or appropriate in its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules discretion in regard to the Pledge Agreement, 2003 Note Purchase Agreement and the financing thereunder;
(iiih) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Collateral Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in being satisfied with all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby by this Amendment, the 2003 Note Purchase Agreement and all the Amended and Restated Intercreditor Agreement dated as of September 29, 2003, between, amongst others, the Lenders and the 2003 Noteholders (the "Intercreditor Agreement") and other documents incidental or instruments incident hereto or thereto not previously found acceptable by Administrative Agent, acting which are contemplated in connection herewith or therewith;
(i) payment to the Collateral Agent on behalf of Lendersthe Lenders of sufficient funds received by the Canadian Borrower and FSLP, pursuant to the 2003 Note Purchase Agreement, to reduce the outstanding Total Commitments to U.S.$90,000,000 and to reduce the Total U.S. Commitments, as a subset of the Total Commitments, to U.S.$50,000,000; and
(j) delivery of any other documents, opinions of legal counsel, financial statements, and its counsel shall such other writings as may be satisfactory in form and substance to Administrative required by the Collateral Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.Xxxxxx Xxxxxxx;
Appears in 1 contract
Samples: Credit Agreement (Firstservice Corp)
Conditions to Effectiveness. Section 1 Relating to establishment of Term B-4 Loans and refinancing of Term B-3 Loans).
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(1) counterparts of this Amendment shall become effective only upon executed by (A) each Loan Party and (B) the satisfaction Administrative Agent;
(2) Receipt of all a Joinder executed by one or more Term B-4 Lenders such that the aggregate principal amount of the following conditions precedent Term B-4 Commitments shall equal (x) the date aggregate principal amount of satisfaction the outstanding Term B-3 Loans immediately prior to the effectiveness of such conditions being referred this Amendment plus (y) $740,000,000.
(3) a Note executed by the Borrower in favor of each Lender requesting a Term Note at least two (2) Business Days prior to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment No. 4 Effective Date, Company shall deliver if any.
(4) an opinion of (i) Kxxxxxxx & Exxxx LLP, New York counsel to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise notedLoan Parties, dated the First Amendment No. 4 Effective Date:
1. Copies of all amendments Date and (ii) Hxxxxxx, Xxxxxx, Jxxxxxx & Nxxxx, P.C., Virginia counsel to the Organizational Documents of Company executed on or after February 19, 2008Loan Parties, in each casecase addressed to each Amendment No. 4 Bookrunner, certified by Amendment No. 4 Arranger, the Secretary Administrative Agent and the Term B-4 Lenders, substantially in the form previously provided to the Administrative Agent;
(5) (A) a certificate as to the good standing of State of Delaware or, if such document is each Loan Party as of a type that may not be so certifiedrecent date, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State state of Delaware, its organization or a similar Governmental Authority and (B) a certificate of a Responsible Officer of each Loan Party dated the Amendment No. 4 Effective Date and certifying (I) to the effect that (x) attached thereto is a true and complete copy of the certificate or articles of incorporation or organization of such Loan Party certified as of a recent date prior by the Secretary of State of the state of its organization, or in the alternative (other than in the case of C.B. Fleet Topco and its Subsidiaries), certifying that such certificate or articles of incorporation or organization have not been amended since the Amendment No. 3 Effective Date, and that such certificate or articles are in full force and effect, (y) attached thereto is a true and complete copy of the by-laws or operating agreements of each Loan Party as in effect on the dated the Amendment No. 4 Effective Date, or in the alternative (other than in the case of C.B. Fleet Topco and its Subsidiaries), certifying that such by-laws or operating agreements have not been amended since the Amendment No. 3 Effective Date and (z) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers or member, as the case may be, of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, or in the alternative (other than in the case of C.B. Fleet Topco and its Subsidiaries), certifying that such resolutions have not been amended since the Amendment No. 3 Effective Date and (II) as to the First incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and signed by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to this clause (B) or in the alternative (other than in the case of C.B. Fleet Topco and its Subsidiaries), certifying that the incumbency and specimen signature for each officer executing any Loan Document on behalf of any Loan Party has not changed since the Amendment No. 3 Effective Date;
2. Resolutions (6) a certificate signed by a Responsible Officer of its Board the Borrower certifying as to the satisfaction of Directors approving the conditions set forth in paragraphs (c), (e), (f), (g) and authorizing the execution, delivery, and performance (h) of this AmendmentSection 2 (in the case of clause (f), to the Pledge Agreement Amendment (as defined below) and the Deed knowledge of Trust, certified as such Responsible Officer based solely on his or her review of the First Amendment Effective Date certificate delivered by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.C.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Prestige Brands Holdings, Inc.)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon (the satisfaction of all “Amendment No. 3 Effective Date”) on the date on which each of the following conditions precedent is satisfied:
(a) The Administrative Agent’s receipt of the date following, each of satisfaction which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(1) counterparts of such conditions being referred this Amendment executed by (A) each Loan Party, (B) the Administrative Agent and (C) the Additional Term B-3 Lender;
(2) a Note executed by the Borrower in favor of each Lender requesting a Note at least two (2) Business Days prior to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment No. 3 Effective Date, Company shall deliver if any; and
(3) an opinion of Xxxxxxxx & Xxxxx LLP, New York counsel to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise notedLoan Parties, dated the First Amendment No. 3 Effective Date:
1Date and addressed to each Amendment No. Copies of all amendments 3 Arranger, the Administrative Agent and the Lenders, substantially in the form previously provided to the Organizational Documents Administrative Agent;
(4) (A) a certificate as to the good standing of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is Loan Party as of a type that may not be so certifiedrecent date, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State state of Delaware, its organization or a similar Governmental Authority and (B) a certificate of a Responsible Officer of each Loan Party dated the Amendment No. 3 Effective Date and certifying (I) to the effect that (w) attached thereto is a true and complete copy of the certificate or articles of incorporation or organization such Loan Party certified as of a recent date prior to by the First Secretary of State of the state of its organization, or in the alternative, certifying that such certificate or articles of incorporation or organization have not been amended since the Amendment No. 2 Effective Date;
2, and that such certificate or articles are in full force and effect, (x) attached thereto is a true and complete copy of the by-laws or operating agreements of each Loan Party as in effect on the Amendment No. Resolutions 3 Effective Date, or in the alternative, certifying that such by-laws or operating agreements have not been amended since the Amendment No. 2 Effective Date and (y) attached thereto is a true and complete copy of its Board resolutions duly adopted by the board of Directors approving and directors, board of managers or member, as the case may be, of each Loan Party authorizing the execution, delivery, delivery and performance of this Amendmentthe Loan Documents to which such Loan Party is a party, the Pledge Agreement Amendment (as defined below) and the Deed of Trustthat such resolutions have not been modified, certified as of the First Amendment Effective Date by the secretary rescinded or similar officer as being amended and are in full force and effect without modification effect, or amendment;
3in the alternative, certifying that such resoultions have not been amended since the Amendment No. Signature 2 Effective Date and (II) as to the incumbency certificates and specimen signature of its officers each officer executing any Loan Document on behalf of any Loan Party and signed by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to this Amendmentclause (B) or in the alternative, certifying that the Pledge Agreement incumbency and specimen signature for each officer executing any Loan Document on behalf of any Loan Party has not changed since the Amendment and the Deed of TrustNo. 2 Effective Date; and
(5) a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in paragraphs (e) and (f) of this Section 3 and that the Term B-3 Loans meet the requirements and conditions to be Refinancing Term Loans.
(b) Receipt of Consents from Term Lenders and/or receipt of a Joinder executed by one or more Additional Term B-3 Lenders such that the aggregate principal amount of the Exchanged Term Loans plus the aggregate principal amount of the Additional Term B-3 Commitments shall equal the aggregate principal amount of the outstanding Term B-1 Loans and Term B-2 Loans immediately prior to the effectiveness of this Amendment.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of the Term Lenders immediately prior to the Amendment No. 3 Effective Date, all accrued and unpaid interest on the Term B-1 Loans and Term B-2 Loans to, but not including, the Amendment No. 3 Effective Date on the Amendment No. 3 Effective Date.
(d) All fees and expenses due to the Administrative Agent, the Amendment No. 3 Arrangers and the Lenders (including, without limitation, pursuant to Section 5 hereof) required to be paid on the Amendment No. 3 Effective Date shall have been paid.
(e) Other than those that shall be waived pursuant to the first sentence of Section 4. Executed copies , no Default shall exist, or would result from the Amendment and related Credit Extension or from the application of the proceeds therefrom.
(f) The representations and warranties of the Borrower and each Subsidiary Guarantor contained in Article V of the Credit Agreement and Section 2 of this Amendment or any other Loan Document shall be true and the First Amendment to Pledge correct in all material respects on and Security Agreement dated as of the date hereof between Companywith the same effect as though made on and as of such date, its Subsidiaries 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; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective date.
(g) To the extent reasonably requested by an Additional Term B-3 Lender in writing not less than five (5) Business Days prior to the Amendment No. 3 Effective Date, the Administrative Agent (shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Borrower required by regulatory authorities under applicable “Pledge Agreement Amendment”)know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
B. (h) The Administrative Agent shall have received a Committed Loan Notice not later than 1:00 p.m. (iNew York time) a duly completed amendment to UCC financing statement, (ii) updated schedules on the Business Day prior to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting date of the recent name change of Company.
C. proposed Credit Extension. The Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company notify the Borrower and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment No. 3 Effective Date, Date and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbinding.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment No. 2 Effective Date”):) on which:
A. On or before (a) the First Amendment Effective Date, Company shall deliver to Lenders Administrative Agent (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderits counsel) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate shall have received from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this AmendmentBorrower, the Pledge Agreement Amendment (as defined below) Required Lenders and the Deed of TrustAdministrative Agent, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies a counterpart of this Amendment and signed on behalf of each such party;
(b) the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower stating that the representations and warranties of the Borrower and each other Loan Party contained in Article III of the Existing Credit Agreement or any other Loan Document are true and correct in all material respects as of the Amendment No. 2 Effective Date; provided, that, to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(c) the Borrower shall have (i) a duly completed amendment reimbursed the Administrative Agent for the reasonable and documented out-of-pocket expenses incurred by it in connection with this Amendment invoiced at least three (3) Business Days prior to UCC financing statementthe Amendment No. 2 Effective Date (including the reasonable and documented fees, charges and disbursements of Cxxxxx Xxxxxx & Rxxxxxx LLP, counsel for the Administrative Agent) and (ii) updated schedules to the Pledge Agreement, paid all fees and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments expenses required to be filed in order paid on the Amendment No. 2 Effective Date pursuant to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counselEngagement Letter, dated as of January 11, 2023, between the First Borrower, Wxxxx Fargo Bank, N.A. and Wxxxx Fargo Securities, LLC;
(d) no Event of Default or Default shall have occurred and be continuing on the Amendment No. 2 Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon Agreement is subject to the prior or concurrent satisfaction of all each of the following conditions precedent and this Amendment Agreement shall become effective on the first Business Day on which the following conditions are satisfied or waived (the date of satisfaction of such conditions being referred to herein as the “First Third Amendment Effective Date”):
A. On 3.1 Administrative Agent shall have received:
(i) a copy of this Amendment Agreement executed by Xxxxxxxx, each other Credit Party, the Administrative Agent and the Required Revolving Lenders;
(ii) a duly executed certificate of the secretary (or before similar Authorized Signatory) of each Credit Party dated as of the First Third Amendment Effective Date, Company shall deliver including a certificate of incumbency with respect to Lenders two or more than two Authorized Signatories of such Person, together with the following items: (or to Administrative Agent for Lenders with sufficient originally executed copiesA) a true, where appropriate, for correct and complete copy of each Lender) Organizational Document of such Credit Party as in effect on the following, each, unless otherwise noted, dated the First Third Amendment Effective Date:
1. Copies , (B) certificates of all amendments to the Organizational Documents of Company executed on status (or after February 19, 2008, in each case, certified equivalent) for such Credit Party issued by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer state official for the state of Companyincorporation, together with formation or organization of such Credit Party, as applicable, and (C) a good standing certificate from the Secretary of State true, complete and correct copy of the State corporate or other organizational resolutions of Delawaresuch Credit Party authorizing such Credit Party, each dated as applicable, to execute, deliver and perform this Amendment Agreement and the other Loan Documents to which such Credit Party is a recent date party;
(iii) payment of all fees, costs and expenses required to be paid on or prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Third Amendment Effective Date by pursuant to any Loan Document, including, without limitation, all reasonable legal fees and documented out of pocket expenses of the secretary or similar officer as being Administrative Agent reimbursable under Section 11.2 of the Loan Agreement (including in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing connection with this Amendment, the Pledge Agreement Amendment and the Deed of TrustAgreement); and
4. Executed copies (iv) the Administrative Agent shall have received such other certificates, documents and agreements as the Administrative Agent or any Lender may reasonably request.
3.2 No Default or Event of Default shall have occurred and be continuing or shall be caused by the transactions contemplated by this Amendment Agreement.
3.3 All of the representations and warranties under this Amendment Agreement and the First Amendment to Pledge other Loan Documents, shall be true and Security Agreement dated correct as of the date hereof between Company, its Subsidiaries and Administrative Agent the Third Amendment Effective Date (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules except to the Pledge Agreementextent relating specifically to a specific prior date) in all material respects (provided that if any representation or warranty already includes a materiality or material adverse effect qualifier, and (iii) certificates (which certificates such representation or warranty shall be accompanied by irrevocable undated stock powers, duly endorsed true and correct in blank and otherwise satisfactory in form and substance to Administrative Agentall respects), both before and after giving effect to this Amendment Agreement and after giving effect to any updates to information provided to the Lenders in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection accordance with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies terms of such documents as Administrative Agent may reasonably requestrepresentations and warranties.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 3.1. Article I(a) and Article II of this Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Incremental Amendment Effective Date”):) on which:
A. On (a) The Administrative Agent (or before its counsel) shall have received from (i) the First Administrative Agent, (ii) the New Term Lender and (iii) each Loan Party, (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to the Administrative Agent (which may include a telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received a customary written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 5 Effective Date) of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel for the Loan Parties. Each of the Borrower, Holdings and the Administrative Agent hereby instruct such counsel to deliver such legal opinion.
(c) The Administrative Agent shall have received such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates (or a representation that such Responsible Officers are the same as those whose signature and incumbency certificates were delivered to the Administrative Agent on the Closing Date), certificates of incorporation (or a representation that such certificates have not been amended since the Closing Date) and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party on the Incremental Amendment Effective Date.
(d) The Borrower shall have paid to the Administrative Agent all fees, if applicable, and expenses due to the Administrative Agent and the Amendment No. 5 Arrangers, as separately agreed in writing, on the Incremental Amendment Effective Date, Company shall deliver to Lenders the extent such fees and/or expenses are invoiced at least one business day prior to the Closing Date. All reasonable costs and expenses (or to including, without limitation, the reasonable fees, charges and disbursements of counsel for the Administrative Agent) of the Administrative Agent for Lenders and the Amendment No. 5 Arrangers in connection with sufficient originally executed copiesthis Amendment and the transactions contemplated hereby shall have been paid as separately agreed in writing, where appropriateto the extent invoiced at least one business day prior to the Closing Date.
(e) The representations and warranties of each Loan Party set forth in Article V 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 of this Amendment with the same effect as though made on and as of such date, for each Lenderexcept 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; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of this Amendment or on such earlier date, as the case may be.
(f) At the followingtime of and immediately after giving effect to this Amendment, each, unless otherwise notedno Default or Event of Default shall exist or would result from this Amendment or from the application of the proceeds therefrom.
(g) The Administrative Agent shall have received a certificate, dated the First Incremental Amendment Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (e) and (f) of this Section 3.1.
(h) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental B-4 Dollar Term Loans to be made on the Incremental Amendment Effective Date at the Administrative Agent’s Office at least three Business Days prior to the Incremental Amendment Effective Date (or in each case, such shorter notice as is approved by the Administrative Agent in its reasonable discretion), and such Committed Loan Notice shall otherwise meet the requirements set forth in Section 2.02 of the Credit Agreement.
(i) The Administrative Agent shall have received, no later than three Business Days in advance of the Incremental Amendment Effective Date:
1. Copies of , (i) all amendments documentation and other information about the Loan Parties that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act and (ii) if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, a Beneficial Ownership Certification (as defined in Exhibit A hereto) in relation to the Organizational Documents of Company executed on or after February 19, 2008Borrower, in each case, certified by to the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date extent reasonably requested in writing at least seven Business Days prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Incremental Amendment Effective Date by the secretary or similar officer as being in full force New Term Lender through the Administrative Agent (provided that, upon the execution and effect without modification or amendment;
3. Signature and incumbency certificates delivery by such Lender of its officers executing signature page to this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of condition set forth in this Amendment and the First Amendment clause (l) shall be deemed to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”be satisfied).
B. (j) The Administrative Agent shall have received (i) the results of a duly completed amendment recent Lien search in each of the jurisdictions in which Uniform Commercial Code financing statements, or other filings or recordations should be made to UCC financing statementevidence or perfect security interests in the Collateral, (ii) updated schedules and such search shall reveal no Liens on any of the Collateral, except for Liens permitted by Section 7.01 of the Credit Agreement or discharged on or prior to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance Incremental Amendment Effective Date pursuant to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance documentation reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Avantor, Inc.)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment No. 1 Effective Date”):) on which:
A. On (a) The Administrative Agent (or before its counsel) shall have received from (i) the First Additional Term B Lenders, (ii) the Administrative Agent, (iii) the Borrower, (iv) Holdings and (v) each Revolving Lender, a counterpart of this Amendment signed on behalf of such party (it being understood that each Person signing this Amendment as a Revolving Lender that was not a Revolving Lender prior to the Amendment No. 1 Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copieswithout further action, where appropriate, for each Lender) on the following, each, unless otherwise noted, dated the First Amendment No. 1 Effective Date:
1. Copies of all amendments , become party to the Organizational Documents of Company executed on or after February 19Credit Agreement as a Revolving Lender, 2008, in each case, certified by with all the Secretary of State of Delaware or, if such document is rights and obligations of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2Revolving Lender provided therein). Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and The Administrative Agent (or its counsel) shall have received from each Lender with a Term B Commitment a duly executed Consent. By delivering a signature page to this Amendment No. 1, each Revolving Lender hereby agrees that its Revolving Loan Commitment in effect on the “Pledge Agreement Amendment No. 1 Effective Date is set forth on Schedule I-B to this Amendment”).
B. (b) The Administrative Agent (or its counsel) shall have received from the Borrower and the Guarantors, a duly executed Reaffirmation Agreement, substantially in the form of Exhibit B attached hereto.
(c) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementan opinion of Xxxxxx & Xxxxxxx LLP, (ii) updated schedules counsel to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for CompanyLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent’s receipt of the following, each executed by a Responsible Officer of the signing Loan Party, each dated the Amendment No. 1 Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment No. 1 Effective Date):
(1) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and its counselcapacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment; and
(2) such Organizational Documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, dated as or in the alternative, certifications that the Organizational Documents of each Loan Party have not been amended since the First Amendment Effective Closing Date, and setting forth that such Organizational Documents or articles are in full force and effect, and a good standing or active status certificate for each Loan Party in its jurisdiction of its organization.
(e) The Lenders and the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all documentation and other information about the Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act not less than three (3) Business Days prior to the Amendment No. 1 Effective Date to the extent such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay information has been requested at least seven (7) calendar days prior to each Lender executing this the Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.No. 1
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):) on which:
A. On or before (a) the First Amendment Effective Date, Company shall deliver to Lenders Administrative Agent (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderits counsel) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate shall have received from the Secretary of State Loan Parties, the Swingline Lender, each Issuing Bank and each of the State of DelawareLenders under the Credit Agreement, each dated a recent date prior to including the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) Incremental Revolving Lenders and the Deed of TrustIncremental Term A Lenders, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies a counterpart of this Amendment and signed on behalf of each such party;
(b) the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, true and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received complete copies of one or more favorable written opinions the Organizational Documents of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Companyeach Loan Party and a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the Board of Directors or other governing body, as applicable, of each Loan Party (or a duly authorized committee thereof) authorizing (A) the execution, delivery and performance of this Amendment (and any agreements relating thereto), (B) in the case of the U.S. Borrower, the extensions of credit hereunder, together with such certificates relating to the good standing of each Loan Party or the substantive equivalent, if any, available in the jurisdiction of organization for each Loan Party from the appropriate governmental officer in such jurisdiction as the Administrative Agent may reasonably request and its counsel(ii) a certificate of each Loan Party, dated the Effective Date, substantially in the form of Exhibit M to the Existing Credit Agreement or otherwise reasonably satisfactory to the Administrative Agent, with appropriate insertions, executed by an Authorized Officer of such Loan Party, and attaching the documents referred to in clause (i) above;
(c) the representations and warranties set forth in Section 6 hereof shall be true and correct and the Administrative Agent shall have received a certificate of a Responsible Officer to such effect;
(d) the Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks as of and dated the Effective Date) of (i) Wachtell, Lipton, Rxxxx & Kxxx and (ii) other local counsel reasonably requested by the Administrative Agent;
(e) the Lenders shall have received a certificate from a Financial Officer of the U.S. Borrower, substantially in the form of Exhibit K to the Credit Agreement (or other form reasonably acceptable to the Administrative Agent) confirming the solvency of the U.S. Borrower and the Subsidiaries on a consolidated basis on the Effective Date after giving effect to the funding of the Incremental Term A Loans;
(f) the U.S. Borrower shall have paid all fees and expenses required to be paid on the Effective Date pursuant to, without duplication, (x) Section 8 hereof and (y) the Engagement Letter, dated as of June 13, 2017, between the First Amendment Effective DateU.S. Borrower, Wxxxx Fargo Securities, LLC, J.X. Xxxxxx Securities LLC and setting forth Mxxxxxx Lynch, Pierce, Fxxxxx & Sxxxx Incorporated; and
(g) the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requesta Borrowing Request from the Borrower Representative with respect to the Incremental Term A Loans.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this Amendment shall become effective only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First "Third Amendment Effective Date”"):
A. On or before the First Third Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each LenderLender and its counsel) the following, each, unless otherwise noted, dated the First Third Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer Officer's Certificates of Company, together with dated a recent date prior to the Third Amendment Effective Date, certifying that (a) there has been no change in any of the Loan Parties' Organizational Documents from the date of the Credit Agreement, and (b) the resolutions attached thereto adopted by the Governing Bodies of Company, Katy Seghers and SESCO approving and authorizing the execution, delxxxxx, xxx xerforxxxxx of this Amendment and the SESCO/Montenay Transaction Documents are in full force and effect wxxxxxt modification or amendment;
2. Signature and incumbency certificates of the officers of Company, Katy Seghers and SESCO;
3. A good standing certificate of Coxxxxx, Xxxx Seghexx xxd NEWCO from the Secretary of State of the State of Delawarejurisdictxxx xx xxx xrganization, each dated a recent date prior to the First Third Amendment Effective Date;
24. Resolutions Ten (10) executed copies of its Board this Amendment executed by Company and each Credit Support Party;
5. Executed copies of Directors approving the SESCO/Montenay Transaction Documents (including all schedules, exhixxxx and authorizing amendments thereto), each in form and substance satisfactory to Agent;
6. Evidence in form and substance satisfactory to Agent (including without limitation an Officers' Certificate to the executioneffect set forth in clauses (i) - (v) below) that:
(i) the SESCO/Montenay Transaction Documents shall be in full force axx xxfect and shall not have been amended, deliverysupplemented, waived or otherwise modified without the consent of Agent;
(ii) all conditions to the SESCO/Montenay Transaction set forth in the SESCO/Montenay Trxxxxxtion Documents shall have been satisfiex xx all material respects or the fulfillment of any such conditions shall have been waived with the consent of Agent;
(iii) the SESCO/Montenay Transaction shall have occurred in accordance xxxx the SESCO/Montenay Transaction Documents;
(iv) the aggregaxx xxiginal principal amount of the SESCO Note shall not exceed $6,600,000; and
(x) the Operating Services Agreement shall have been fully executed and delivered, and performance SESCO shall have no further obligations as operator in respecx xx the SESCO Service Agreement; all Governmental Authorizations and xxx xonsents of other Persons (including, without limitation, the City, the Authority and the Energy Purchaser) shall have been obtained, in each case that are necessary or advisable in connection with the replacement of SESCO by Montenay Operations as operator of the SESCO Facilitx xxx in connection with the consummation of the XXXXO/Montenay Transaction, and all conditions required to be xxxxormed or satisfied in connection with such replacement shall have been satisfied.
7. Evidence, in form and substance satisfactory to Agent, from a nationally recognized engineer or a consultant satisfactory to Agent, to the effect that the experience of Montenay Operations or the parent company that owns 100% of the outstanding capital stock of Montenay Operations in operating mass-burn resource recovery facilities similar to the SESCO Facility equals or exceeds that of Company and SESCO.
0. Xx Officers' Certificate of Company, in form and sxxxxxnce satisfactory to Agent, to the effect that the representations and warranties in Section 5 of the Credit Agreement are true, correct and complete in all material respects on and as of the Third Amendment Effective Date (both before and after giving effect to the SESCO/Montenay Transaction and this Amendment) to the same extent ax xxxugh made on and as of that date (or, to the extent such representations and warranties specifically relate to an earlier date, that such representations and warranties were true, correct and complete in all material respects on and as of such earlier date) and that Company and the other Loan Parties shall have performed in all material respects all agreements and satisfied all conditions which this Amendment, the Pledge Credit Agreement Amendment (as defined below) amended by this Amendment, and the Deed of Trust, certified as of other Loan Documents provide shall be performed or satisfied by Company and its Subsidiaries on or before the First Third Amendment Effective Date except as otherwise disclosed to and agreed to in writing by Agent.
B. On or before the secretary or similar officer as being in full force Third Amendment Effective Date, Requisite Lenders, LaSalle Bank National Association and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this AmendmentDeutsche Bank, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed AG shall deliver to Agent copies of this Amendment executed by Requisite Lenders, LaSalle Bank National Association and the First Amendment to Pledge and Security Agreement dated as of the date hereof between CompanyDeutsche Bank, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)AG.
B. Administrative Agent C. On or before the Third Amendment Effective Date, Lenders and their respective counsel shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received originally executed copies of one or more favorable written opinions of JonesHunton & Williams, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., in each case counsel for Companyto Loan Parties, in form and substance reasonably satisfactory satxxxxxxxxy to Administrative Agent and its counsel, dated as of the First Third Amendment Effective Date, Date and setting forth substantially the matters in the opinions designated in Exhibit A to this Amendment and as Administrative to such other matters as Agent acting on behalf of Lenders may reasonably requestrequest and (ii) copies of all opinions issued by counsel to any party to the SESCO/Montenay Transaction Documents or issued to any party to the SESCO/Xxxxxnay Transaction Documents relating to any transactions occurrixx xx or about the Third Amendment Effective Date pursuant to any of the SESCO/Montenay Transaction Documents (including, without limitation, the xxxxxons referenced in Exhibits D, Q and R of the SESCO Joint Venture Agreement), each of which opinions issued by counsel xx xxy Loan Party shall be accompanied by a written authorization from counsel issuing such opinion stating that Agent and Lenders may rely on such opinions as though such opinions were addressed to Agent and Lenders.
E. D. On or before the First Third Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby this Amendment and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 Upon the satisfaction (or waiver) of each of the following conditions, this Amendment shall become be deemed effective only upon the satisfaction of all as of the following conditions precedent date hereof (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before (a) receipt by the First Administrative Agent of counterparts of this Amendment executed and delivered by the Administrative Agent, the Borrowers and the Lenders;
(b) to the extent invoiced at least three (3) Business Days prior to the Effective Date, Company shall deliver payment by the Borrowers of all expenses to Lenders (or be paid to the Administrative Agent for and Lenders in connection with sufficient originally executed copiesthe Credit Agreement, where appropriate, for this Amendment and the other Loan Documents (including legal fees) and the deliverables described in this Section 5;
(c) receipt by each LenderLender requesting the same at least three (3) Business Days prior to the following, each, unless otherwise noted, dated the First Amendment Effective Date:, of a Term Loan Note executed and delivered by the Borrowers, reflecting the increased Term Loan principal amount of such Lender resulting herefrom;
1. Copies (d) receipt by the Administrative Agent of all amendments such written resolutions, minutes of meetings, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and Target as the Administrative Agent may require (i) approving the entry into this Agreement and the other Loan Documents to which such Loan Party or Target is a party or is to be a party and (ii) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party or Target is a party or is to be a party; provided that the Administrative Agent and Lenders party hereto hereby agree to waive any such deliverables of each Loan Party that is not a U.S. Loan Party;
(e) to the Organizational Documents extent applicable in the relevant jurisdiction, receipt by the Administrative Agent of Company executed on such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party and Target is duly incorporated, organized or after February 19formed, 2008is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification; provided that the Administrative Agent and Lenders party hereto hereby agree to waive any such deliverables of each Loan Party that is not a U.S. Loan Party;
(f) receipt by the Administrative Agent of a favorable opinion of (i) Xxxxxxxx & Xxxxx LLP, counsel to the Loan Parties, (ii) Xxxxxxxxxx & Xxxxx, P.A., special Minnesota counsel to Talon and (iii) Xxxxx & Lardner LLP, special Florida counsel to Talon (FL), in each case, certified addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(g) receipt by the Secretary of State of Delaware or, if such document is Administrative Agent of a type duly executed and delivered certificate of a Responsible Officer of the Borrowers, certifying that, before and after giving effect to borrowing of the Incremental Term Loans pursuant to Section 3 hereof and the use of proceeds thereof, each of the following are satisfied (for purposes of the following subclauses of this clause (g), terms used but not otherwise defined herein or in the Credit Agreement shall have such meanings assigned to them in that certain Commitment Letter (the “Commitment Letter”) dated November 3, 2017, among Holdings, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, SunTrust Xxxxxxxx Xxxxxxxx, Inc., SG Americas Securities, LLC, Bank of America, N.A., SunTrust Bank and Societe Generale):
(i) the conditions set forth in Section 7.03(g) of the Credit Agreement have been satisfied with respect to the Acquisition such that the Acquisition is a Permitted Acquisition; provided, that the Administrative Agent and the Lenders hereby agree that certifications to be delivered pursuant to Section 7.03(g)(v) may not be so certified, certified delivered substantially simultaneously with the consummation of the Permitted Acquisition;
(ii) the Specified Acquisition Agreement Representations are true and correct to the extent required by the secretary Certain Funds Provision and the Specified Representations are true and correct in all material respects (except in the case of any Specified Acquisition Agreement Representation or Specified Representation which expressly relates to a given date or period, such representation and warranty is true and correct to the extent required as of the respective date or for the respective period, as the case may be); provided that to the extent that any of the Specified Representations are qualified by or subject to a “material adverse effect”, “material adverse change” or similar officer term or qualification, the definition thereof shall be a Material Adverse Effect (as defined in the Acquisition Agreement) for purposes of Companyany such representations and warranties made or deemed made on, together with a good standing certificate from or as of, the Secretary of State of the State of Delaware, each dated a recent Third Amendment Effective Date (or any date prior to thereto);
(iii) substantially concurrently with the First Third Amendment Effective Date, the Acquisition will be consummated, in all material respects, in accordance with the terms of the Acquisition Agreement, as amended or otherwise modified, but without giving effect to any amendments, waivers, consents or other modifications thereto by the Borrowers that are materially adverse to the interests of the Commitment Parties (in their capacities as such) without the consent of the Commitment Parties, such consent not to be unreasonably withheld, delayed or conditioned (it being understood that (a) any modification, amendment, consent or waiver to or under the definition of Material Adverse Effect in the Acquisition Agreement shall be deemed to be material and adverse to the interests of the Commitment Parties, (b) any decrease in the purchase price shall not be materially adverse to the interests of the Commitment Parties so long as the amount of such reduction is applied to reduce the principal amount of the Incremental Loans, (c) any increase in the purchase price shall not be materially adverse to the Commitment Parties if funded with equity and (d) other than as set forth in clause (a) above, the granting of any consent under the Acquisition Agreement that is not materially adverse to the interests of the Commitment Parties shall not otherwise constitute an amendment or waiver);
2. Resolutions of its Board of Directors approving and authorizing the execution(iv) since November 3, delivery2017, and performance of this Amendment, the Pledge Agreement Amendment there has not occurred a Material Adverse Effect (as defined below) and in the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of TrustAcquisition Agreement); and
4. Executed copies (v) no Event of this Default under Section 8.01(a), Section 8.01(f) or Section 8.01(g) of the Existing Credit Agreement exists or is continuing.
(h) receipt by the Administrative Agent of a Request for Credit Extension in accordance with the requirements of the Credit Agreement;
(i) on the Third Amendment and Effective Date, after giving effect thereto, including the First borrowing of the Third Amendment to Pledge and Security Agreement dated Incremental Term Loans, all Indebtedness of the Targets outstanding as of immediately prior to such date and set forth on Schedule 3.1(j) of the date hereof between Company, its Subsidiaries and Administrative Agent Acquisition Agreement (as defined in the “Pledge Agreement Amendment”).Commitment Letter) shall be repaid or terminated;
B. (j) the Administrative Agent shall have received (i) a joinder agreement duly completed amendment to UCC financing statementexecuted and delivered by the Targets substantially in the form attached hereto as Exhibit B; provided, (ii) updated schedules however, that this condition shall be subject in all respects to the Pledge AgreementCertain Funds Provision (as defined in the Commitment Letter);
(k) the Administrative Agent and the Lenders shall have received fees in such amounts in accordance with the terms of that certain Third Amendment Fee Letter dated as of November 3, 2017 among the Borrowers, the Administrative Agent and the Lenders;
(iiil) certificates receipt by the Administrative Agent of a certificate of the chief financial officer (which certificates shall be accompanied or other officer with reasonably equivalent responsibilities) of Ichor Systems, Inc. in the form delivered on July 27, 2017 in connection with the Second Amendment, certifying that the Loan Parties and their Subsidiaries, taken as a whole, after giving effect to the Transactions (as defined in the Commitment Letter), are Solvent;
(m) receipt by irrevocable undated stock powersthe Administrative Agent of unaudited consolidated balance sheets and related statements of income and cash flows of the Targets for each fiscal month ended after August 31, duly endorsed in blank 2017 and otherwise satisfactory in form and substance at least thirty (30) days prior to the Third Amendment Effective Date; and
(n) receipt by the Administrative Agent), no later than three (3) Business Days in each case reflecting advance of the recent name change Third 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, without limitation, the PATRIOT Act, that has been reasonably requested by the Commitment Parties at least ten (10) days in advance of Company.
C. the Third Amendment Effective Date; provided, that the Administrative Agent shall have received cover sheets or other documents or instruments required a signed flow of funds with respect to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as payment of the First proceeds of the Third Amendment Incremental Term Loans no later than one (1) Business Day in advance of the Third Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date (such date, the “Amendment No. 3 Effective Date”) each of the following conditions precedent shall have been satisfied (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”or waived):
A. On (a) The Agent’s receipt of the following, each of which shall be originals or before facsimiles or electronic copies unless otherwise specified:
(1) (x) counterparts of this Amendment executed by each Borrower, each other Loan Party and the First Agent and (y) an executed Lender Addendum by each Continuing Term B-2 Lender and the Additional Term B-2 Lender, representing aggregate Term B-2 Commitments equal to $635,000,000; and
(2) a Note executed by a Responsible Officer of each of the Borrowers in favor of each Lender requesting a Note at least three (3) Business Days prior to the Amendment No. 3 Effective Date, Company shall deliver to Lenders if any.
(or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderb) The Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies unless otherwise noted, dated the First Amendment Effective Datespecified:
(1. Copies ) favorable written opinions of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementXxxxxxxx & Xxxxxxxx LLP, as special New York counsel for Parent, the Borrowers and the Guarantors and (ii) updated schedules to Xxxxxxxxxxx Xxxxxxxxx, PLLC, as special Michigan counsel for the Pledge Agreement, and Loan Parties (iiiincluding the Lead Borrower) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent)organized under the laws of Michigan, in each case reflecting (A) dated the recent name change of Company.
C. Administrative Amendment No. 3 Effective Date, (B) addressed to the Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, on the Amendment No. 3 Effective Date and (C) in form and substance reasonably satisfactory to Administrative the Agent covering customary matters relating to the Amendment and its counsel, dated the other Loan Documents executed as of the First Amendment No. 3 Effective Date;
(2) a certificate (or certificates) of the Secretary or Assistant Secretary, statutory director, management board members or similar or other authorized officer of each Loan Party (other than the English Loan Parties, the Jersey Loan Parties, the Swedish Loan Parties, the Belgian Loan Parties, the Irish Loan Parties, the Polish Loan Parties, the Spanish Loan Parties and the Mexican Loan Parties), dated the Amendment No. 3 Effective Date and certifying, to the extent applicable:
(i) that attached thereto is a true and complete copy of the certificate or articles of incorporation, any certificates of incorporation on change of name, certificates of incorporation on re-registration as a public limited company, certificate of limited partnership, certificate of formation or other equivalent constituent or constitutional and governing documents, including all amendments thereto, of such Loan Party certified as of a recent date by the applicable Secretary of State (or other similar official or Governmental Authority) of the jurisdiction of its organization or incorporation or by the Secretary or Assistant Secretary, statutory director, management board members or similar or other authorized officer of such Loan Party or by a notary public or other person duly authorized by the constituent or constitutional documents of such Loan Party. In relation to each Luxembourg Loan Party, the above shall include (i) an excerpt issued by the RCS dated no earlier than 1 Business Day prior to the Amendment No. 3 Effective Date and (ii) a certificate issued by the RCS dated no earlier than 1 Business Day prior to the Amendment No. 3 Effective Date stating that no judicial decision or administrative decision pursuant to which it would be subject to one of the judicial or administrative proceedings including, but not limited to, bankruptcy (faillite), reprieve from payment (sursis de paiement), judicial reorganization proceedings (procédure de réorganisation judiciaire) or debt write-off (effacement de dettes), has been registered with the RCS by application of article 13, items 4 to 12, 16 and 17 of the Luxembourg law of 19 December 2002 on the Register of Commerce and Companies and on the accounting and annual accounts of undertakings, as amended;
(ii) that in the case of the Lead Borrower and any Guarantor that is a U.S. Subsidiary, attached thereto is a true and complete copy of a certificate as to the good standing (or similar certification) of the Lead Borrower or such Guarantor, as applicable (to the extent that such concept exists in such jurisdiction), as of a recent date from the applicable Secretary of State (or other similar official or Governmental Authority);
(iii) that attached thereto is a true and complete copy of the by-laws (or articles of association, articles of incorporation, partnership agreement, limited liability company agreement or other equivalent constituent or constitutional and governing documents, if any) of such Loan Party as in effect on the Amendment No. 3 Effective Date and at all times since a date prior to the date of the resolutions described in the following clause (iv);
(iv) that attached thereto is a true and complete copy of resolutions or meeting minutes (or certificates thereof) duly adopted by the shareholders, members, general partner or Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of each of the Loan Documents to which such person is a party on the Amendment No. 3 Effective Date and that such resolutions or meeting minutes have not been modified, rescinded or amended and are in full force and effect on the Amendment No. 3 Effective Date;
(v) to the extent not covered in (i), (iii) or (iv) above, that attached thereto is a true and complete copy of any powers-of-attorney granted by such Loan Party to the individuals executing each of the Loan Documents to which such person is a party on the Amendment No. 3 Effective Date and that such powers-of-attorney have not been limited, revoked or amended and are in full force and effect on the Amendment No. 3 Effective Date;
(vi) as to the incumbency and specimen signature of each officer or authorized signatory executing this Amendment or any other Loan Document delivered in connection herewith on the Amendment No. 3 Effective Date on behalf of such Loan Party; and
(vii) in the case of each Luxembourg Loan Party, confirming that (a) borrowing or guaranteeing or securing, as appropriate, the entry into the Loan Documents and the performance of its obligations thereunder would not cause any borrowing, guarantee, security or similar limit binding on any Loan Party to be exceeded, and (b) each copy document relating to it specified in this Section 4 (Conditions to Effectiveness) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement; and in relation to each Luxembourg Loan Party, confirming that (a) it rents the premises of its registered office located at 00X, xxxxxx Xxxx X. Xxxxxxx, L-1855 Luxembourg and (b) it is not subject to bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), amicable (out-of-court) reorganisation proceedings (including any request to appoint a conciliator), judicial reorganisation proceedings (including by way of mutual or collective agreement or transfer of assets or activities by court order), reprieve from payment (sursis de paiement), or similar proceedings; the relevant company has not been subject to conservatory measures such as attachment order (saisie conservatoire) or garnishment (saisie attribution or saisie arrêt), has not requested a moratorium on payments and/or periods of grace and no application, petition, order or resolution has been made, or taken by the relevant company or to its knowledge by any other person for the appointment of a commissaire, curateur, liquidateur, conciliateur or similar officer for its administration, winding-up or similar proceedings.
(c) Substantially concurrently with the making of the Term B-2 Loans, the Borrowers shall have paid (or caused to be paid) to the Agent, for the ratable account of (i) each Existing Term Lender, all accrued and unpaid interest on the Existing Term Loans to, but not including, the Amendment No. 3 Effective Date and (ii) each Exiting Lender, the aggregate principal amount of all Existing Term Loans held by such Exiting Lender that are not continued as Term B-2 Loans on the Amendment No. 3 Effective Date.
(d) All fees and expenses due to the Agent, the Amendment No. 3 Arrangers and the Lenders (including, without limitation, pursuant to Section 6 hereof and any fees required to be paid to them by the Borrower as mutually agreed prior to the Amendment No. 3 Effective Date) required to be paid on the Amendment No. 3 Effective Date shall have been paid, in each case in respect of expenses, to the extent invoiced in reasonable detail prior to the date that is three (3) Business Days (or such lesser period as may be reasonably acceptable to the Lead Borrower) prior to the date hereof.
(e) Immediately before and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing or would result from the Amendment and related Credit Event or from the application of the proceeds therefrom.
(f) Immediately before and immediately after giving effect to this Amendment, the representations and warranties of each Loan Party set forth in (i) Article III of the Credit Agreement or (ii) any other Loan Document in effect on the Amendment No. 3 Effective Date, in each case, shall be true and setting forth correct in all material respects on and as of the matters Amendment No. 3 Effective Date; provided, that to the extent such representations and warranties specifically relate to an earlier date, such representations and warranties shall be true and correct in all material respects as Administrative Agent acting of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on behalf of Lenders may reasonably requestsuch respective dates.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative (g) The Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies a certificate of such documents as Administrative Agent may reasonably requesta Responsible Officer of the Parent certifying compliance with the conditions in clauses (e) and (f) above.
F. Company (h) The Agent and the Lenders (as requested through the Agent) shall pay have received at least three (3) Business Days prior to the Amendment Effective No. 3 Date (i) all documentation and other information required with respect to the Borrowers by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, and (ii) a Beneficial Ownership Certification in relation to any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, in each Lender executing this case, to the extent requested in writing at least ten (10) Business Days prior to the Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.Effective No. 3
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date (the “Amendment No. 4 Effective Date”) on which each of the following conditions precedent is satisfied:
(a) The Administrative Agent’s receipt of executed counterparts of this Amendment from the Borrower, the Guarantors, the Required Lenders (solely with respect to the amendments set forth in Section 1 hereof) and (solely with respect to the Extension) the Amendment No. 4 Extending Revolving Credit Lenders, the Swingline Lender and the L/C Issuer, which shall be originals or facsimiles or electronic copies.
(b) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified;
(1) an opinion of Xxxxxxxx & Xxxxx LLP, counsel for the Borrower (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 4 Effective Date);
(2) either (x) a copy of each Constituent Document of each Loan Party that is on file with any Governmental Authority in any jurisdiction, certified as of a recent date by such Governmental Authority, or (y) confirmation from each Loan Party that there has been no change to such Constituent Document since last delivered to the Administrative Agent or certified as unchanged since last delivered to the Administrative Agent, together with, if applicable, certificates attesting to the good standing (to the extent available in such jurisdiction) of each Loan Party in such jurisdiction, other than for those Guarantors where the failure to be in good standing could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(3) a certificate of the secretary or other officer of each Loan Party in charge of maintaining books and records of such Loan Party certifying as to (A) the names and signatures of each officer of such Loan Party authorized to execute and deliver this Amendment, (B) either (x) the Constituent Documents of such Loan Party attached to such certificate are complete and correct copies of such Constituent Documents as in effect on the date of satisfaction such certification or (y) that there has been no change to such Constituent Document since last delivered to the Administrative Agent or certified as unchanged since last delivered to the Administrative Agent and (C) the resolutions of such conditions being referred to herein as Loan Party’s board of directors or other appropriate governing body approving and authorizing the “First Amendment Effective Date”):execution, delivery and performance of this Amendment; and
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender4) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate (to the extent such concept is known in the relevant jurisdiction) from the Secretary of State applicable Governmental Authority of the State Borrower’s and the Guarantors’ respective jurisdiction of Delawareincorporation, each organization or formation dated a recent date prior to the First Amendment No. 4 Effective Date;, other than for those Guarantors where the failure to be in good standing could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
2(c) To the extent invoiced at least three business days prior to the Amendment No. Resolutions 4 Effective Date, all reasonable, documented and invoiced out-of-pocket fees and expenses due to the Administrative Agent and the Lenders required to be paid on the Amendment No. 4 Effective Date (including pursuant to Section 5 hereof) shall have been paid.
(i) No Default or Event of its Board Default shall exist, or would result from the Amendment and related Borrowing or from the application of Directors approving the proceeds therefrom and authorizing (ii) no Event of Default occurred and was continuing at the executiontime a draft of this Amendment was first delivered to each Lender of the Existing Revolving Credit Commitments.
(e) The representations and warranties set forth Section 2 are true and correct.
(f) At least three (3) Business Days prior to the Amendment No. 4 Effective Date, deliveryany Loan Party that qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 shall have delivered, and performance to each Lender that so requests, a certification (the “Beneficial Ownership Certification”) regarding beneficial ownership required by 31 C.F.R. § 1010.230 in relation to such Loan Party.
(g) The Administrative Agent shall have received, (i) for the ratable account of each Term Lender that consents to this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as a consent fee equal to 0.05% of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates aggregate outstanding principal amount of its officers executing this Amendment, Term B Loans immediately prior to the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies effectiveness of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to for the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in ratable account of each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Revolving Credit Lender that is an Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009No. 4 Extending Revolving Credit Lender, an amendment extension fee equal to 1.00.20% of such Lender’s Revolving Loan Exposure.the aggregate principal amount of its Amendment No. 4
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this Amendment shall become effective only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First "Third Amendment Effective Date”"):
A. On or before the First Third Amendment Effective Date, Company the Borrower shall deliver to the Lenders (or to the Administrative Agent for the Lenders with sufficient originally executed copies, where appropriate, for each LenderLender and its counsel) the following, each, unless otherwise noted, dated the First Third Amendment Effective Date:
1. Copies Secretary's Certificate dated as of the Third Amendment Effective Date, certifying that there have been no changes to its Articles of Incorporation or Bylaws since July 11, 2001 and that the adoption of the Amended Plan and the formation of the Trust has been approved and authorized by all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Companynecessary corporate action, together with a good standing certificate from the Secretary of State of the State of Delaware, each Delaware dated a recent date prior to the First Third Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Third Amendment Effective Date by the its corporate secretary or similar officer an assistant secretary as being in full force and effect without modification or amendment;; and
3. Signature and incumbency certificates of its officers executing this Amendment.
B. On or before the Third Amendment Effective Date, the Pledge Agreement Amendment Borrower and each other Loan Party shall execute the Deed of Trust; and
4. Executed copies of this Amendment and the First Second Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance satisfactory to Administrative Agent), in each case reflecting the recent name change of CompanyLenders.
C. Administrative Agent On or before the Third Amendment Effective Date, the Borrower and each other Loan Party shall have received cover sheets or other documents or instruments required execute the Second Amendment to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, Subsidiary Guaranty in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably requestLenders.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only --------------------------- upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Dateprecedent:
1. Receipt by the Agent of executed replacement Revolving Notes substantially in the form attached to the Credit Agreement.
2. Receipt by the Agent of the following:
(a) Copies of all amendments the articles or certificates of incorporation or other charter documents of each Applicant Borrower certified to the Organizational Documents be true and complete as of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to by the First Amendment Effective Date;
2. Resolutions appropriate Governmental Authority of the state or other jurisdiction of its Board of Directors approving incorporation and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the a secretary or similar officer as being in full force assistant secretary of such Applicant Borrower to be true and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated correct as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)hereof.
B. Administrative Agent shall have received (b) A copy of the bylaws of each Applicant Borrower certified by a secretary or assistant secretary of such Applicant Borrower to be true and correct as of the date hereof.
(c) Copies of resolutions of the Board of Directors of each Borrower approving and adopting the Credit Documents to which it is a party, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a secretary or assistant secretary of such Borrower to be true and correct and in force and effect as of the date hereof.
(d) Copies of (i) certificates of good standing, existence or its equivalent with respect to each Applicant Borrower certified as of a duly completed amendment recent date by the appropriate governmental authorities of the state or other jurisdiction of incorporation and each other jurisdiction in which the failure to UCC financing statement, so qualify and be in good standing could reasonably be expected to have a Material Adverse Effect and (ii) updated schedules to the Pledge Agreementextent available, and (iii) certificates (which certificates shall be accompanied a certificate indicating payment of all corporate franchise taxes certified as of a recent date by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Companyappropriate governmental taxing authorities.
C. Administrative Agent shall have received cover sheets (e) An incumbency certificate of each Applicant Borrower certified by a secretary or other documents or instruments required assistant secretary to be filed in order to create or perfect Liens in all intellectual property of Company true and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated correct as of the First date hereof.
(f) New and/or amended UCC-1 financing statements for the Borrowers, as appropriate.
(g) UCC search reports for the Acquired Companies acquired since the acquisition of MST Enterprises, Inc. (the "New Acquired ------------ Companies"). ---------
(h) Stock certificates of the Applicant Borrowers and undated stock powers executed in blank.
(i) Acknowledgment Agreements with respect to all leased and mortgaged properties of the Applicant Borrowers.
(j) Copies of final executed Acquisition Documents.
3. Receipt by the Agent of an opinion, or opinions (which shall cover, among other things, authority, legality, validity, binding effect, enforceability of this Amendment Effective and, in the case of the Applicant Borrowers, attachment and perfection of liens), satisfactory to the Agent, addressed to the Agent and the Lenders and dated the Closing Date, and setting forth from legal counsel to the matters as Administrative Agent acting on behalf of Lenders may reasonably requestBorrowers.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date (the “Amendment No. 6 Effective Date”) on which each of the following conditions precedent is satisfied:
(a) The Administrative Agent’s receipt of counterparts of this Amendment executed by (1) each Loan Party, (2) the date Administrative Agent, the L/C Issuer, and the Swing Line Lender, and (3) each Revolving Credit Lender, each of satisfaction which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified.
(b) The Administrative Agent’s receipt of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise notedspecified;
(1) an opinion of (i) Ropes & Xxxx LLP, New York counsel to the Loan Parties and (ii) Xxxxx Xxxx LLP, Georgia counsel to the Loan Parties, each dated the First Amendment No. 6 Effective Date:
1. Copies of all amendments Date and addressed to the Organizational Documents of Company executed on or after February 19, 2008Administrative Agent and the Lenders, in each case, a form reasonably satisfactory to the Administrative Agent;
(2) (A) certificates of good standing (to the extent such concept exists in such Loan Party’s state of organization) certified by the Secretary of State of Delaware or, if such document is as of a type that may not be so certified, certified recent date by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State state of the State state of Delawareorganization of each Loan Party, and (B) a certificate of a Responsible Officer of each Loan Party dated the Amendment No. 6 Effective Date and certifying (I) to the effect that (w) attached thereto is a true and complete copy of the certificate or articles of incorporation or organization of such Loan Party certified as of a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary of state of the state of its organization and that such certificate or similar officer as being articles are in full force and effect without modification effect, or, with respect to each Loan Party other than the Borrower, in the alternative, certifying that such certificate or amendment;
3. Signature and incumbency certificates articles of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall incorporation or organization have received not been amended or otherwise modified since (i) a duly completed amendment with respect to UCC financing statementHoldings and Bioarray Solutions Ltd., Xxxxx 00, 0000, (iixx) updated schedules with respect to the Pledge AgreementImmucor GTI Diagnostics, Inc., Immucor Holdings, Inc., Immucor Transplant Diagnostics, Inc. and Immucor GTI Diagnostics Holding Company, April 26, 2013, and (iii) with respect to Sirona Genomics, Inc., April 12, 2016, and that such certificate or articles are in full force and effect, (x) attached thereto is a true and complete copy of the by-laws or operating agreements of each Loan Party as in effect on the Amendment No. 6 Effective Date, or, with respect to each Loan Party other than the Borrower, in the alternative, certifying that such by-laws or operating agreements have not been amended or otherwise modified since (i) with respect to Holdings and Bioarray Solutions Ltd., Xxxxx 00, 0000, (xx) with respect to Immucor GTI Diagnostics, Inc., Immucor Holdings, Inc., Immucor Transplant Diagnostics, Inc. and Immucor GTI Diagnostics Holding Company, April 26, 2013, and (iii) with respect to Sirona Genomics, Inc., April 12, 2016 and (y) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or members, as applicable, of each Loan Party authorizing the execution, delivery and performance of this Amendment by such Loan Party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (II) as to the incumbency and specimen signature of each officer executing this Amendment on behalf of any Loan Party and signed by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificates pursuant to this clause (which certificates B); and
(3) a certificate signed by a Responsible Officer of the Borrower certifying that (x) before and after giving effect to this Amendment, the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement or any other Loan Document are true and correct in all material respects on and as of the Amendment No. 6 Effective Date as though made on and as of the Amendment No. 6 Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be accompanied by irrevocable undated stock powerstrue and correct in all material respects as of such earlier date; provided, duly endorsed further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in blank all respects on such respective date and otherwise satisfactory in form (y) at the time of and substance after giving effect to Administrative Agent)this Amendment, in each case reflecting the recent name change of Companyno Default exists, or would result from this Amendment.
C. (c) All fees and expenses due to the Administrative Agent and the Lenders (including, without limitation, pursuant to Section 5 hereof) required to be paid on or prior to the Amendment No. 6 Effective Date and invoiced at least two (2) Business Days prior to the Amendment No. 6 Effective Date shall have been paid.
(d) To the extent reasonably requested by a Revolving Credit Lender in writing not less than five (5) Business Days prior to the Amendment No. 6 Effective Date, the Administrative Agent shall have received cover sheets or received, prior to the effectiveness of this Amendment, all documentation and other documents or instruments information with respect to the Borrower and the other Loan Parties required to be filed in order to create or perfect Liens in all intellectual property of Company by regulatory authorities under applicable “know-your-customer” and its Subsidiaries in anti-money laundering rules and regulations, including the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to PATRIOT Act. The Administrative Agent shall notify the Borrower and its counsel, dated as the Lenders of the First Amendment No. 6 Effective Date, Date and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbinding.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Immucor Inc)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment and the obligations of the Term B-4 Lenders to make the Term B-4 Loans shall become effective only upon on the satisfaction of all of Amendment No. 5 Effective Date, which shall be the first Business Day on which the following conditions precedent are satisfied or waived:
(i) the date Administrative Agent (or its counsel) shall have received counterparts of satisfaction this Amendment or Amendment No. 5 Consent that, when taken together, bear the signatures of such conditions being referred (A) each Amendment No. 5 Cashless Option Lender and each Amendment No. 5 Post-Closing Option Lender, (B) the Administrative Agent, (C) the Additional Term B-4 Lender, (D) the Borrower and (E) each Guarantor;
(ii) the Administrative Agent shall have received a notice of Borrowing for the Additional Term B-4 Loans (whether in writing or by telephone) in accordance with the Credit Agreement;
(iii) the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(A) a favorable opinion of Xxxxx Day, counsel for the Loan Parties, in a form and substance reasonably satisfactory to herein the Administrative Agent;
(B) a certificate from a Responsible Officer of each Loan Party dated as of the “First Amendment Effective Date”):
A. On or before the First Amendment No. 5 Effective Date, Company shall deliver and attaching the documents referred to Lenders in clause (or to C) below;
(C) the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendershall have received (i) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State resolutions of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the execution, delivery, delivery and performance of this Amendmentthe Amendment (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the Pledge Agreement Amendment (as defined below) and the Deed extensions of Trustcredit contemplated hereunder, certified as of the First Amendment No. 5 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendmentamendment and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
3. Signature (D) before and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of after giving effect to this Amendment and the First Amendment borrowing of or exchange into the Term B-4 Loans and to Pledge the application of any proceeds therefrom (i) no Default or Event of Default shall exist and Security (ii) all of the representations and warranties contained in the Credit Agreement dated and in the other Loan Documents shall be true and correct in all material respects at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(E) the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received from the Borrower an Officer’s Certificate certifying as to compliance with the preceding clause (iD); and
(F) a duly completed amendment the representations and warranties of each Loan Party set forth in Section 5 below shall be true and correct in all material respects;
(iv) the fees in the amounts previously agreed in writing by SunTrust Xxxxxxxx Xxxxxxxx, Inc. to UCC financing statementbe received on the Amendment No. 5 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (including the reasonable fees, (ii) updated schedules charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, as counsel to the Pledge Agreement, Amendment No. 5 Arrangers and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to the Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken ) incurred in connection with the transactions contemplated hereby for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 5 Effective Date shall, upon the Borrowing of the Term B-4 Loans, have been, or will be substantially simultaneously, paid in full; and
(v) each of the Administrative Agent and all documents incidental thereto not previously found acceptable the Additional Term B-4 Lender shall have received a “Life-of-Loan” flood determination notice for each real property encumbered by Administrative Agenta Mortgage and if such real property is located in a special flood hazard area, acting on behalf (x) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and (y) evidence of Lenders, and its counsel shall be satisfactory insurance as required by the Credit Agreement in form and substance satisfactory to each of the Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestthe Additional Term B-4 Lender.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Amendment Agreement (Polyone Corp)
Conditions to Effectiveness. Section 1 The effectiveness of this Second Amendment shall become effective only upon is subject to the satisfaction of all (or waiver) of the following conditions precedent (conditions:
Section 3.1 This Second Amendment shall have been duly executed by Parent, the date Borrower, each Guarantor, the Administrative Agent, the Collateral Agent, each Revolving Lender, the Swingline Lender and each Issuing Bank and delivered to the Administrative Agent.
Section 3.2 No Default or Event of satisfaction of such conditions being referred to herein as Default shall exist or would result on the “First Second Amendment Effective Date from the entry into this Second Amendment by the parties hereto on the Second Amendment Effective Date”):.
A. On or before Section 3.3 The representations and warranties of each Loan Party set forth in Article V of the First Existing Credit Agreement, Article IV of this Second Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, and in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not other Loan Document shall be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving true and authorizing the execution, delivery, correct in all material respects on and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Second Amendment Effective Date by with the secretary same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar officer language shall be true and correct in all respects on the Second Amendment Effective Date or on such earlier date, as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”)case may be.
B. Section 3.4 The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementcertificate of each Loan Party, (ii) updated schedules dated the Second Amendment Effective Date, substantially in the form of Exhibit G to the Pledge AgreementExisting Credit Agreement with appropriate insertions, executed by any Responsible Officer of such Loan Party, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powersincluding or attaching the relevant documents referred to therein or, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent)if applicable, in each case reflecting certifying that no changes have been made since the recent name change date of Companythe last delivery of a certificate of a Responsible Officer.
C. Section 3.5 The Administrative Agent shall have received cover sheets or all fees and other documents or instruments required amounts previously agreed in writing by the Borrower and the arrangers of this Second Amendment and the transactions contemplated hereby to be filed in order due and payable on or prior to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Second Amendment Effective Date, including, to the extent invoiced at least three Business Days prior to the Second Amendment Effective Date (except as otherwise reasonably agreed by the Borrower), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and setting forth the matters as disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document.
Section 3.6 The Administrative Agent acting on behalf shall have received all documentation at least three Business Days prior to the Second Amendment Effective Date and other information about the Loan Parties that shall have been reasonably requested in writing at least 10 Business Days prior to the Second Amendment Effective Date and that the Administrative Agent has reasonably determined is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Title III of Lenders may reasonably request.
E. On or before the First USA Patriot Act. If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to the Administrative Agent, at least 3 Business Days prior to the Second Amendment Effective Date, all corporate and other proceedings taken or a Beneficial Ownership Certification to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable extent requested by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to the Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestat least 10 Business Days prior to the Second Amendment Effective Date.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of The Credit Agreement shall be amended as provided in this Amendment on the date first set forth above when:
(a) the Administrative Agent shall become effective only upon have received this Amendment duly executed by the satisfaction of all Borrower, each Guarantor, each Lender, the Issuing Bank and the Administrative Agent;
(b) the Administrative Agent shall have received each Note requested by a Lender pursuant to Section 2.02(g) of the following conditions precedent Credit Agreement payable to the order of such requesting Lender in the amount of its Revolving Commitment after giving effect to this Amendment;
(c) the Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party dated as of the date of satisfaction hereof and certifying (A) such Loan Party’s organizational documents or that there have been no changes to the organizational documents of such conditions being referred Loan Party since such organizational documents were last certified to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for and the Lenders with sufficient originally executed copies, where appropriate, for each Lenderor attaching such amendments and (B) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies that attached thereto is a true and complete copy of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified resolutions duly adopted by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and of such Loan Party authorizing the execution, delivery, delivery and performance of this Amendment, the Pledge Credit Agreement Amendment (as defined below) amended hereby and the Deed of Trustother Loan Documents to which such Loan Party is a party and, certified as in the case of the First Amendment Effective Date by Borrower, the secretary borrowings under the Credit Agreement, as amended hereby, and that such resolutions have not been modified, rescinded or similar officer as being amended and are in full force and effect without modification or amendmenteffect;
3. Signature and incumbency certificates of its officers executing this Amendment, (d) the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement Administrative Agent shall have received a favorable opinion dated as of the date hereof between Companyof Xxxxx Xxxxxx, its Subsidiaries and Administrative Agent general counsel to the Loan Parties;
(e) the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementfavorable opinion dated as of the date hereof of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, (ii) updated schedules Texas, New York and Delaware counsel to the Pledge Agreement, and Loan Parties;
(iiif) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more a favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, opinion dated as of the First Amendment Effective Datedate hereof of Xxxx Xxxxxx Hawthorne D’Xxxxxx XxXxxxx & Xxxxxx L.L.P., and setting forth Louisiana counsel to the matters as Loan Parties; and
(g) the Administrative Agent acting on behalf of Lenders shall have received such other documents, governmental certificates and agreements as the Administrative Agent or any Lender may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Diamondback Energy Services, Inc.)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment and the obligations of the Term B-7 Lenders to make the Term B-7 Loans shall become effective only upon on the satisfaction of all of first Business Day on which the following conditions precedent are satisfied or waived (the date of satisfaction of such conditions being referred to herein as the “First Amendment No. 8 Effective Date”):
A. On (i) the Administrative Agent (or before its counsel) shall have received counterparts of this Amendment or Amendment No. 8 Consents that, when taken together, bear the First signatures of (A) each Term B-7 Cashless Option Lender and each Term B-7 Post-Closing Option Lender, (B) the Administrative Agent, (C) the Amendment No. 8 Additional Term Lender, (D) the Borrower and (E) each Guarantor;
(ii) the Administrative Agent shall have received a notice of Borrowing for the Additional Term B-7 Loans (whether in writing or by telephone) in accordance with the Credit Agreement;
(iii) the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(A) a favorable opinion of Xxxxx Day, counsel for the Loan Parties, in a form and substance reasonably satisfactory to the Administrative Agent and the Amendment No. 8 Arrangers;
(B) a certificate from a Responsible Officer of each Loan Party dated as of the Amendment No. 8 Effective Date, Company shall deliver and attaching the documents referred to Lenders in clause (or to C) below;
(C) the Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendershall have received (i) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State resolutions of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the execution, delivery, delivery and performance of this Amendmentthe Amendment (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the Pledge Agreement Amendment (as defined below) and the Deed extensions of Trustcredit contemplated hereunder, certified as of the First Amendment No. 8 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendmentamendment and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
3. Signature (D) immediately before and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of immediately after giving effect to this Amendment and the First Amendment borrowing of or exchange into the Term B-7 Loans and to Pledge the application of any proceeds therefrom (i) no Default or Event of Default shall exist and Security (ii) all of the representations and warranties contained in the Credit Agreement dated and in the other Loan Documents shall be true and correct in all material respects at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(E) the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received from the Borrower an Officer’s Certificate certifying as to compliance with the preceding clause (iD);
(F) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets a certificate attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the Amendment No. 8 Transactions, from the Borrower’s chief financial officer or other documents or instruments required treasurer; and
(G) the representations and warranties of each Loan Party set forth in Section 5 below shall be true and correct in all material respects;
(iv) the fees in the amounts previously agreed in writing by Xxxxxx Xxxxxxx & Co. LLC to be filed in order received on the Amendment No. 8 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (including the reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, as counsel to create or perfect Liens in all intellectual property of Company the Amendment No. 8 Arrangers and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken Agent) incurred in connection with the transactions contemplated hereby for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 8 Effective Date shall, upon the Borrowing of the Term B-7 Loans, have been, or will be substantially simultaneously, paid in full;
(v) each of the Administrative Agent and all documents incidental thereto not previously found acceptable the Amendment No. 8 Additional Term Lender shall have received a “Life-of-Loan” flood determination notice for each real property encumbered by Administrative Agenta Mortgage and if such real property is located in a special flood hazard area, acting on behalf (x) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and (y) evidence of Lenders, and its counsel shall be satisfactory insurance as required by the Credit Agreement in form and substance satisfactory to each of the Administrative Agent and such counselthe Amendment No. 8 Additional Term Lender; and
(vi) concurrently with the Amendment No. 8 Effective Date, and Administrative Agent and such counsel the Borrower Prepayment shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestoccurred.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Amendment Agreement (Avient Corp)
Conditions to Effectiveness. Section 1 of this Amendment shall become effective only upon Upon the satisfaction of all each of the following conditions precedent conditions, this Agreement shall be deemed to be effective as of the date hereof (the date of satisfaction of such conditions being referred to herein as conditions, the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendera) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementcounterparts of this Agreement executed by the Administrative Agent, the Required Lenders and each of the Loan Parties and (ii) updated schedules written notice from each Lender making an Amortization Extension Election (which notice may be made via facsimile, telecopy, pdf or email) to Xxxxxxx Xxxxxxx at Bank of America (000-000-0000 or xxxxxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx), with a copy to Xxxx Xxxx at Winston & Xxxxxx LLP (000-000-0000 or xxxxx@xxxxxxx.xxx), it being understood that any Lender who submits a signature page without a written notice of the making of an Amortization Extension Election by 12:00 Noon (Eastern Daylight Time) on July 6, 2009 shall be deemed not to have made an Amortization Extension Election pursuant to this Agreement as of the Effective Date (without prejudice to its right to make an Amortization Extension Election after the Effective Date but prior to the Pledge Extension Deadline pursuant to Section 3(b) above), unless such later time (prior to the Effective Date) is otherwise agreed by the Administrative Agent and the Borrower;
(b) the Borrower shall have paid to the Administrative Agent (or its applicable affiliate), for the account of each Lender that executes and delivers to the Administrative Agent (or its counsel) a signature page to this Agreement, an amendment fee in an amount equal to (i) 0.15% times (ii) the sum of (A) the principal amount of such consenting Lender’s Revolving Commitment plus (B) the aggregate Outstanding Amount of all Term Loans of such consenting Lender, provided that such fee shall only be paid to those Lenders whose signature page is actually received (whether as an original or as an electronic transmission in accordance with Section 8(c) below) by the Administrative Agent (or its counsel) on or prior to 12:00 Noon(Eastern Daylight Time) on July 6, 2009 unless such later time (prior to the Effective Date) is otherwise agreed by the Administrative Agent and the Borrower;
(iiic) certificates the Administrative Agent shall have been paid all other fees owed to it (which certificates shall be accompanied by irrevocable undated stock powersincluding, duly endorsed in blank and otherwise satisfactory in form and substance to without limitation, those owing under the Fee Letter dated as of June 15, 2009, among the Administrative Agent), Banc of America Securities LLC and the Borrower) and reimbursed for all reasonable, invoiced out-of-pocket costs and expenses incurred by the Administrative Agent in each case reflecting connection with this Agreement, including, without limitation, the recent name change reasonable, invoiced fees and disbursements of Company.counsel for the Administrative Agent; and
C. (d) the Administrative Agent shall have received cover sheets or such other instruments, documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in certificates as the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may shall reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken request in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf execution of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestthis Agreement.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon is subject to the satisfaction of all of the following conditions precedent (the date of satisfaction on which all of such conditions being referred to herein as shall first be satisfied, the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendera) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. The Administrative Agent shall have received from the Borrower, the Required Lenders and the Administrative Agent either (i) a duly completed amendment to UCC financing statement, counterpart of this Agreement signed on behalf of such party or (ii) updated schedules written evidence satisfactory to the Pledge Agreement, and (iii) certificates Administrative Agent (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change may include telecopy transmission of Companya signed signature page) that such party has signed a counterpart of this Amendment.
C. (b) The Administrative Agent shall have received cover sheets such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Amendment and any other documents or instruments required legal matters relating to be filed in order to create or perfect Liens in the Credit Parties and the Loan Documents, all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to the Administrative Agent and its counsel, .
(c) The Administrative Agent shall have received a certificate dated as of the First Amendment Effective Date, and setting signed by a Vice President or Financial Officer of the Borrower, certifying that (i) the representations and warranties set forth in Section 8 of this Amendment are true as of the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate (ii) after giving effect to this Amendment and other proceedings taken or to be taken in connection with the transactions contemplated hereby hereby, no Default or Event of Default has occurred and all documents incidental thereto not previously found acceptable by Administrative is continuing and (iii) the conditions set forth in Section 10 have been satisfied on and as of the Amendment Effective Date (other than conditions that are subject to the satisfaction of the Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel ).
(d) The Credit Parties shall have received paid, or have caused to be paid, all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay invoiced fees and other amounts due and payable to each the Lender executing this Amendment Parties on or before the close Amendment Effective Date, including, to the extent invoiced, all out-of-pocket expenses (including fees, charges and disbursements of business counsel) required to be reimbursed or paid by any Credit Party under the Loan Documents, together with all other fees separately agreed to in writing by the Borrower and the Administrative Agent (San Francisco timeor any of its Affiliates).
(e) on February 26Since December 31, 20092011, an amendment fee equal to 1.0% there has been no Material Adverse Effect. The Administrative Agent shall notify the Borrower and the Lenders of the Amendment Effective Date and such Lender’s Revolving Loan Exposurenotice shall be conclusive and binding.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment No. 3 shall become be effective immediately, subject only upon to the satisfaction of following conditions subsequent: (i) the filing by all of the following conditions precedent Plan Proponents (as such term is defined in the Second Amended Joint Chapter 11 Plan of Reorganization of Xxxxxxxx Communications Group, Inc. ("WCG") and CG Austria, Inc. ("CG Austria") filed on August 12, 2002 with the United States Bankruptcy Court for the Southern District of New York (the date "Bankruptcy Court"), in the Chapter 11 Case No. 02-11957 (the "Plan of satisfaction Reorganization")), with the written consent of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective DateThe Xxxxxxxx Companies, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copiesInc., where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments modifications to the Organizational Documents Plan of Company executed on or after February 19Reorganization and an amended Investment Agreement, 2008, Stockholders Agreement and New WCG Charter (as such terms are defined in each case, certified by the Secretary Plan of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of DelawareReorganization), each substantially in the forms attached as Exhibit D to that certain Stipulation and Agreement (the "Stipulation") dated a recent date prior to as of September 23, 2002 (the First Amendment Effective "Stipulation Date;
2. Resolutions of its Board of Directors approving and authorizing the execution") among Xxxxxxxx, deliveryXX Austria, and performance of this AmendmentWCG, the Pledge Agreement Amendment SBC Communications Inc. (as defined below"SBC") and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementother parties thereto, (ii) updated schedules to the Pledge AgreementPlan of Reorganization shall have been confirmed by the Bankruptcy Court and the Effective Date (as defined in the Plan of Reorganization) shall have occurred on or before October 14, and 2002; (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent Bankruptcy Court shall have received cover sheets or other documents or instruments required to be filed in entered an order to create or perfect Liens in all intellectual property of Company and its Subsidiaries that shall have become a Final Order (as defined in the United States.
D. Lenders shall have received copies Plan of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment Reorganization) on or before October 14, 2002, PROPRIETARY INFORMATION This information contained in this Amendment No. 3 is not for use or disclosure outside SBC, Xxxxxxxx, their affiliated companies and their third party representatives, except under written agreement by the close contracting Parties. AMENDMENT NO. 3 TO TRANSPORT SERVICES AGREEMENT, AS AMENDED approving and authorizing WCG's and CG Austria's entering into and performing the Stipulation; and (iv) the Plan of business Reorganization shall not have been modified or amended in any manner that would affect SBC or that would alter the Plan of Reorganization in any material respect without the express prior written consent of SBC, which shall not be unreasonably withheld (San Francisco timeexcept that the Plan of Reorganization may be amended as set forth in Exhibit D to the Stipulation without further consent from SBC). The Parties each acknowledge and agree that the amendments and provisions set forth in Sections 1 and 2 above are not effective until the conditions subsequent set forth in clauses (i) through (iv) in this Section 3 have been satisfied or waived in writing by SBC. Subject to the immediately following sentence, in the event that any of these conditions subsequent shall fail to have been satisfied or waived by SBC in writing on February 26or before October 14, 20092002 (subject to extension as set forth below), an then this Amendment No. 3 shall be null and void, ab initio, and the Parties shall be restored to their respective rights and obligations as in existence immediately prior to the Stipulation Date. In the event that Section 4.2 of the Plan of Reorganization is amended to extend the date of October 14, 2002 to a later date (but no later than November 14, 2002 except as provided in the immediately following sentence), this Section 3 shall automatically (without any action of the Parties or other signatories hereto) be amended so that references to October 14, 2002 herein are replaced with reference to the date in Section 4.2 of the Plan of Reorganization, as so amended; provided, however, that no such amendment fee equal to 1.0% will be effective if, at the time of such Lender’s Revolving Loan Exposureamendment to the Plan of Reorganization, the Investment Agreement, the Restructuring Agreement or the TWC Settlement Agreement (as such terms are defined in the Plan of Reorganization) shall have been terminated. In the event that all of the conditions subsequent set forth in this Section 3 shall have been satisfied on or before November 14, 2002, except that the Effective Date shall not have occurred and none of the Investment Agreement, the Restructuring Agreement or the TWC Settlement Agreement shall have been terminated, then this Amendment No. 3 shall not terminate if the Effective Date occurs on or before January 13, 2003; provided that this Amendment No. 3 shall be null and void, ab initio, and the Parties shall be restored to their respective rights and obligations as in existence immediately prior to the Stipulation Date (i) if the Effective Date shall not have occurred by January 13, 2003 or (ii) upon termination of the Investment Agreement, the Restructuring Agreement or the TWC Settlement Agreement.
Appears in 1 contract
Samples: Transport Services Agreement (Wiltel Communications Group Inc)
Conditions to Effectiveness. (a) The Waiver and the amendments to the Credit Agreement set forth in Section 1 of this Amendment 2 above (other than Section 2(c)) shall become effective only upon on the satisfaction of first date on which the Agent shall have received counterparts hereof executed by CSC and the Majority Lenders or, as to any Lender, evidence satisfactory to the Agent that such Lender has executed this Amendment.
(b) Sections 4 and 5 and the amendments to the Credit Agreement set forth in Section 2(c) shall become effective on the first date (the “Assumption Effective Date”) on which the following conditions are satisfied:
(i) The Agent shall have received the following: #89270124v18
(a) counterparts hereof executed by CSC and all of the following conditions precedent Lenders or, as to any Lender, evidence satisfactory to the Agent that such Lender has executed this Amendment;
(b) an Assumption Agreement executed by CSC and Xxxxxxx substantially in the date form of satisfaction Annex 1 hereto relating to Xxxxxxx’x assumption of such conditions being referred the obligations of CSC under the Credit Agreement;
(c) a Designation Agreement executed by CSC and Xxxxxxx, substantially in the form of Annex II hereto relating to herein Xxxxxxx’x designation of CSC as a Designated Subsidiary under the “First Amendment Effective Date”):Credit Agreement;
A. On or before (d) a certificate of an authorized officer of Xxxxxxx, dated the First Amendment Assumption Effective Date, Company shall deliver (A) certifying the names and true signatures of the officers of Xxxxxxx authorized to Lenders sign the Assumption Agreement and any other documents to be delivered by Xxxxxxx in connection with the Assumption Agreement, (or to Administrative Agent for Lenders with sufficient originally executed copiesB) attaching and certifying the correctness and completeness of the copies of Xxxxxxx’x Certificate of Incorporation and Bylaws, where appropriate, for each Lender(C) attaching and certifying the following, each, unless otherwise noted, dated correctness and completeness of copies of the First Amendment Effective Date:
1. Copies resolutions of all amendments to the Organizational Documents Board of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary Directors or similar officer governing body of CompanyXxxxxxx, together with approving the execution, delivery and performance of the Assumption Agreement and the other Loan Documents to which Xxxxxxx is to be a party and (D) attaching a good standing certificate of Xxxxxxx from the Secretary state of State of the State of Delawareits organization, each dated a recent date prior to the First Amendment Assumption Effective Date;
2. Resolutions (e) no later than five Business Days in advance of its Board the Assumption Effective Date, all documentation and other information reasonably requested with respect to Xxxxxxx in writing by any Lender at least ten Business Days in advance of Directors approving the Assumption Effective Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and authorizing anti-money laundering rules and regulations, including the executionPatriot Act;
(f) a certificate of an authorized officer of Xxxxxxx, deliverydated the Assumption Effective Date, stating that (i) the representations and performance warranties of Xxxxxxx (after giving effect to this AmendmentAmendment including Section 2(c) hereof) contained in Article IV of the Credit Agreement are correct, (ii) no Event of Default or Potential Event of Default exists on and as of the Pledge Agreement Amendment Assumption Effective Date and (iii) the “Guarantee Release Date” (as defined below) and in the Deed form of Trust, certified Guaranty set forth as of Exhibit B to the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Term Loan Credit Agreement dated as of December 16, 2016 among Xxxxxxx, the date hereof between Companylenders parties thereto and The Bank of Tokyo-Mitsubishi UFJ, its Subsidiaries and Administrative Agent Ltd., as administrative agent, as amended, supplemented or otherwise modified on or prior to the Assumption Effective Date) has #89270124v18 occurred or shall occur substantially concurrently with the Assumption Effective Date; and
(the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (ig) a duly completed amendment to UCC financing statementfavorable legal opinion of in house legal counsel of Xxxxxxx, dated the Assumption Effective Date; and
(ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates The Merger shall have been consummated or shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting consummated substantially concurrently with the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Assumption Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date on which each of the following conditions precedent is satisfied:
(a) The Administrative Agent’s receipt of the date following, each of satisfaction which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(1) executed counterparts of such conditions being referred this Amendment executed by a Responsible Officer of the Borrower and Guarantors; and
(2) a Note executed by a Responsible Officer of the Borrower in favor of each Incremental Term Lender requesting a Note at least two (2) Business Days prior to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment No. 1 Effective Date, Company shall deliver to Lenders if any.
(or to b) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise notedspecified;
(1) an opinion of Xxxxxxx Procter LLP, New York counsel for the Loan Parties (addressed to the Administrative Agent and the Lenders and dated the First Amendment No. 1 Effective Date:);
1. Copies (2) (i) a copy of all amendments each Organizational Document of the Borrower and the Guarantors and, to the Organizational Documents of Company executed on or after February 19, 2008, in each caseextent applicable, certified by the Secretary as of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date by the appropriate governmental official (or a representation that such Organizational Documents have not been amended since the Closing Date); (ii) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party as of the Amendment No. 1 Effective Date and prior to the First Amendment Effective Date;
2. Resolutions funding of its Board the Incremental Term Loans; (iii) resolutions of Directors the board of directors or similar governing body of the Borrower and the Guarantors approving and authorizing the execution, delivery, delivery and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed other Loan Documents to which such Loan Party is a party as of Trustthe Amendment No. 1 Effective Date and prior to the funding of the Incremental Term Loans, certified as of the First Amendment No. 1 Effective Date by the secretary or similar officer such Loan Party as being in full force and effect without modification or amendment;
3. Signature ; and incumbency certificates (iv) a good standing certificate (to the extent such concept is known in the relevant jurisdiction) from the applicable Governmental Authority of its officers executing this Amendment, the Pledge Agreement Amendment Borrower’s and the Deed Guarantors’ respective jurisdiction of Trustincorporation, organization or formation dated a recent date prior to the Amendment No. 1 Effective Date; and
4(3) a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in paragraphs (d) and (e) of this Section 3 and that the Incremental Term Loans meet the requirements and conditions set forth in Section 2.20 of the Credit Agreement.
(c) The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior the Amendment No. Executed copies 1 Effective Date, including, without limitation, the fees set forth in that certain Engagement Letter dated as of April 25, 2016 among the Borrower, Credit Suisse AG and Credit Suisse Securities (USA), LLC and, to the extent invoiced at least one (1) Business Day prior to the Amendment No. 1 Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower in connection with this Amendment.
(d) No Event of Default shall exist, or would result from the Amendment and related Credit Event or from the application of the proceeds therefrom.
(e) The representations and warranties of the Borrower and each other Loan Party contained in Article III of the Credit Agreement and Section 2 of this Amendment or any other Loan Document shall be true and the First Amendment to Pledge correct in all material respects on and Security Agreement dated as of the date hereof between Company(or true and correct in all material respects as of a specified date, its Subsidiaries if earlier), except that for purposes of this Section 3, the representations and warranties contained in Section 3.04(a) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished prior to the Amendment No. 1 Effective Date pursuant to Section 5.01(a) and Section 5.01(b) of the Credit Agreement.
(f) To the extent requested by a New Incremental Term Lender in writing not less than three (3) Business Days prior to the Amendment No. 1 Effective Date, the Administrative Agent (shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Borrower required by regulatory authorities under applicable “Pledge Agreement Amendment”)know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
B. (g) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules Borrowing Request not later than 1:00 p.m. on the Business Day prior to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting date of the recent name change of Companyproposed Credit Event.
C. (h) The Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property the executed counterparts of Company the Joinder executed by the Borrower and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to each New Incremental Term Lender. The Administrative Agent shall notify the Borrower and its counsel, dated as the Lenders of the First Amendment No. 1 Effective Date, Date and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbinding.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment shall become effective only upon be subject to the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as upon which this Amendment becomes effective, the “First Amendment Effective Date”):
A. On or before (a) The Agent shall have received:
(1) counterparts of this Amendment that, when taken together, bear the First signatures of (A) each Loan Party and (B) the Consenting Lenders.
(2) a counterpart of the fee letter (the “Amendment Effective DateFee Letter”) to be delivered in connection with this Amendment duly executed by the Company.
(3) counterparts of the ABL-Term Intercreditor Agreement, Company shall deliver in form and substance acceptable to Lenders the Agent, that, when taken together, bear the signatures of (or to A) the Term Loan Administrative Agent for Lenders and (B) each Loan Party.
(4) counterparts of the Master Assignment and Assumption Agreement that, when taken together, bear the signatures of (A) each Lender party thereto and (B) each party required to consent thereto in accordance with sufficient originally executed copiesthe Credit Agreement, where appropriateand the Master Assignment and Assumption Agreement shall be in full force and effect.
(5) a certificate, for each Lenderwhich demonstrates that (i) the followingCompany and the Restricted Subsidiaries, eachon a consolidated basis, unless otherwise notedare and, after giving effect to the Amendment No. 3 Transactions, will be and will continue to be, Solvent, and (ii) Global Excess Availability, after giving effect to the Amendment No. 3 Transactions, shall not be less than $175,000,000.
(6) (x) a certificate of each Loan Party, dated as of the First Amendment Effective Date:
1. Copies of all amendments date hereof, in form and substance reasonably acceptable to the Agent, with appropriate insertions and attachments, including certified organizational authorizations, resolutions, incumbency certifications, the certificate of incorporation or other similar Organizational Documents Document of Company executed on or after February 19, 2008, in each case, Loan Party certified by the Secretary as of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to by the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as relevant authority of the First Amendment Effective Date jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified by the secretary or similar officer a Responsible Officer as being in full force and effect without modification on the date hereof; provided, that in lieu of the attachments referred to above, such certificate may certify that (i) since the prior date of delivery, there have been no amendments to the certificate of incorporation, bylaws or amendment;other similar Organizational Documents of such Loan Party and/or (ii) no changes have been made to the relevant information contained on the incumbency certificate of the Responsible Officer of such Loan Party previously delivered by such Loan Party, and (y) a good standing certificate (long form, to the extent available) for each Loan Party from its jurisdiction of organization certified by the relevant authority of the jurisdiction of organization of such Loan Party as of a recent date.
3. Signature (7) The executed legal opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx LLP and incumbency certificates such other executed legal opinions of its officers executing counsel to the Loan Parties as the Agent may reasonably require in connection with this Amendment, the Pledge Agreement Amendment and the Deed each of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent the Agent.
(8) The duly executed and its counsel, dated effective Term Loan Amendment.
(b) No Default or Event of Default shall have occurred and be continuing on and as of the First Amendment Effective DateDate or, after giving effect hereto and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First thereto, would result from this Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request(including the Amendment No. 3 Transactions).
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this 3.1. This Amendment shall become effective only upon on the satisfaction of all of the following conditions precedent date (the date of satisfaction of such conditions being referred to herein as the “First Amendment No. 1 Effective Date”):) on which:
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (a) The Administrative Agent (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderits counsel) shall have received from (i) the followingAdministrative Agent, each(ii) the Incremental Revolving Lenders, unless otherwise noted(iii) the Incremental Term Lenders, dated (iv) each Lender (which Lenders shall also constitute the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19Required Lenders) other than a Non-Consenting Lender and (v) each Loan Party, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies counterpart of this Amendment executed by a Responsible Officer of each Loan Party and the First Amendment to Pledge and Security Agreement dated as a duly authorized officer of the date hereof between Company, its Subsidiaries and Administrative Agent (and each Lender. For purposes of this Section 3.1(a), the “Pledge Agreement Amendment”)Responsible Officers shall be limited to the President, Chief Executive Officer, Chief Financial Officer and General Counsel of each applicable Loan Party.
B. (b) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementcustomary written opinion of counsel for the Loan Parties, (ii) updated schedules dated the Amendment No. 1 Effective Date and addressed to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for CompanyLenders, in form and substance reasonably satisfactory acceptable to the Administrative Agent.
(c) The Administrative Agent and its counsel, shall have received an Officer’s Certificate dated as of the First Amendment No. 1 Effective Date, certifying as to the Organization Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), the resolutions of the governing body of each Loan Party, the good standing, existence or its equivalent of each Loan Party and setting forth of the matters as Administrative Agent acting on behalf incumbency (including specimen signatures) of Lenders may reasonably requestthe Responsible Officers of each Loan Party.
E. On or before (d) The Borrower shall pay to the First Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified, in each case after giving effect to (x) this Amendment Effective Date, all corporate No. 1 and other proceedings taken or (y) any replacement of a Non-Consenting Lender pursuant to be taken Section 11.13 of the Credit Agreement in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by herewith. The Administrative Agent, acting on behalf of Lenders, the Amendment No. 1 Arranger and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel the Lenders shall have received all such counterpart originals other fees and expenses, if any, owing pursuant to the Amendment No. 1 Engagement Letter and Section 2.09 of the Credit Agreement. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(e) The representations and warranties of the Borrower and each other Loan Party set forth in Section 4.1 of this Amendment, in Article V of the Credit Agreement and in any other Loan Document shall (i) with respect to representations and warranties that contain a materiality qualification, be true and correct on and as of the date of this Amendment and (ii) with respect to representations and warranties that do not contain a materiality qualification, be true and correct in all material respects on and as of the date of this Amendment, and except that for purposes of this Section 3.1(e), the representations and warranties contained in Sections 5.05(a) and (b) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) of the Credit Agreement, respectively.
(f) At the time of and immediately after giving effect to this Amendment, no Default shall exist or certified copies would result from this Amendment, the incurrence of such documents the First Incremental Revolving Commitments or the First Incremental Term Commitments as contemplated hereunder or from the application of the proceeds therefrom.
(g) The Administrative Agent may reasonably requestshall have received a certificate, dated the Amendment No. 1 Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (e) and (f) of this Section 3.1. For purposes of this Section 3.1(g), the Responsible Officers shall be limited to the President, Chief Executive Officer, Chief Financial Officer and General Counsel of the Borrower.
F. Company (h) The Administrative Agent shall pay have received a Loan Notice with respect to each Lender executing this the Loans to be made on the Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.No. 1
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall be effective as of the date first above written but shall not become effective only upon as of such date until the satisfaction of all date (the “Effective Date”) that each of the following conditions precedent shall have been satisfied; provided however, that if the Effective Date has not occurred on or prior to August 15, 2012, this Amendment shall be of no further force or effect and shall be deemed to have been terminated:
(a) Lender shall have received from each Credit Party (including the date of satisfaction Meta Health Target) a copy, certified by a duly authorized officer of such conditions being referred Credit Party to herein be true and complete on and as of the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders of each of the charter or other organization documents of such Credit Party as in effect on such date of certification (or to Administrative Agent for Lenders together with sufficient originally executed copiesall, where appropriate, for each Lenderamendments thereto) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware (or, if other than in the case of the Meta Health Target, a confirmation that such document is of documents have not been amended or modified since the Closing Date) and a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, formation of each dated a recent date prior Credit Party as to the First Amendment “good standing” of such Credit Party;
(b) Lender shall have received from each Credit Party (including the Meta Health Target), a copy, certified by a duly authorized officer of such Credit Party to be true and complete on and as of the Effective Date;
2. Resolutions , of its Board the records of Directors approving all action taken by such Credit Party to authorize the execution and authorizing delivery of this Amendment and any other Loan Document entered into on the execution, delivery, Effective Date and performance of to which it is a party or is to become a party as contemplated or required by this Amendment, and its performance of all of its agreements and obligations under each of such documents;
(c) Lender shall have received from each Credit Party (including the Meta Health Target), an incumbency certificate, dated the Effective Date, signed by a duly authorized officer of such Credit Party and giving the name and bearing a specimen signature of each individual who shall be authorized to sign, in the name and on behalf of such Credit Party, this Amendment and each of the other Loan Documents to which such Credit Party is or is to become a party on the Effective Date, and to give notices and to take other action on behalf of such Credit Party under such documents;
(i) The Note, the Joinder to Security Agreement and Guaranty, Amendment No. 1 to Pledge Agreement Amendment (as defined below) and the Deed of Trustother Loan Documents shall have been duly and properly authorized, certified as of executed and delivered to the First Amendment Effective Date Lender by the secretary respective party or similar officer as being parties thereto and shall be in full force and effect without modification or amendment;
3. Signature on and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementEffective Date and, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates Lender shall be accompanied by irrevocable undated stock powerssatisfied with the due diligence associated with the preparation of the Loan Documents;
(e) No change in applicable law shall have occurred as a consequence of which it shall have become and continue to be unlawful for Lender to perform any of their agreements or obligations under this Amendment or the Credit Agreement as amended hereby, duly endorsed in blank and otherwise satisfactory in form and substance any Note, or under any of the other Loan Documents, or for any Credit Party to Administrative Agent)perform any of its agreements or obligations under this Amendment or the Credit Agreement as amended hereby, in each case reflecting any Note, or under any of the recent name change of Company.other Loan Documents;
C. Administrative Agent (f) Lender shall have received cover sheets or other documents or instruments required a written legal opinion of counsel to be filed in order the Credit Parties, addressed to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of JonesLender, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Companydated the Effective Date, in form and substance reasonably satisfactory to Administrative Agent and Lender;
(g) Lender shall have completed its counsel, dated as audit of the First business operations, facilities and books and records of the Credit Parties (including the Meta Health Target) including, but not limited to, review of all material agreements, contracts and commitments of the Credit Parties and such other information and matters as the Lender or its counsel may deem necessary, which audit shall be satisfactory to Lender, in its sole and absolute discretion;
(h) Lender shall have received from each Credit Party the copies of all consents necessary for the completion of the transactions contemplated by this Amendment, the Notes, each of the other Loan Documents, and all instruments and documents incidental thereto;
(i) Each of the conditions to the “Effective Date” under and as defined in Amendment No. 1 to Senior Credit Agreement between the Borrower and the Lender shall have been satisfied;
(i) Lender shall have received copies, certified as true and correct by an officer of Borrower of each Meta Health Acquisition Document, and (ii) prior to, or contemporaneous with, the funding of the additional Loans contemplated by this Amendment, the Meta Health Acquisition shall have been completed on the terms set forth in the Meta Health Acquisition Agreement and (iii) the Equity Subordination Agreement shall have been duly executed and delivered by the Borrower and each of the holders of the Subordinated Convertible Notes;
(k) Borrower shall have paid all fees and expenses due hereunder and under the other Loan Documents including the fee referred to in Section 2 hereof and the fees and expenses due pursuant to Section 8 of the Credit Agreement;
(l) From the date of the Current Financial Statements to the Effective Date, no changes shall have occurred in the assets, liabilities, financial condition, business, operations or prospects of any Company which, individually or in the aggregate, are materially adverse to the Parent, the Borrower and setting their Subsidiaries taken as a whole;
(m) Lender shall have received the Current Financial Statements certified by an officer of each Company, and Lender shall have been satisfied that such Current Financial Statements accurately reflect the financial status and condition of each Company (including the Meta Health Target) and a certificate dated the Effective Date demonstrating Borrower’s compliance with the financial covenants set forth in Sections 5.3, 5.4 and 5.5 of the matters Credit Agreement;
(n) Lender shall have received a report from a UCC search firm acceptable to Lender describing any effective financing statements, judgment liens, tax liens or any other Lien and Lender shall be satisfied with the nature and extent of such Liens;
(o) Lender shall have received such additional documents, instruments or agreements as Administrative Agent acting on behalf of Lenders Lender may reasonably request.;
E. On (p) There does not exist any Event of Default, nor any event which upon notice or before the First lapse of time or both would constitute an Event of Default; and
(q) The representations and warranties contained in this Amendment Effective Date, all corporate and in each other proceedings taken or to be taken Loan Document and in any document delivered in connection with the transactions contemplated hereby therewith will be true and all documents incidental thereto not previously found acceptable by Administrative Agent, acting accurate on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies as of such documents as Administrative Agent may reasonably requestdate.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Subordinated Credit Agreement (Streamline Health Solutions Inc.)
Conditions to Effectiveness. Section 1 of this Amendment This Agreement shall become effective only upon on the satisfaction of all date that each of the following conditions precedent are satisfied or waived:
(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to a) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for shall have received each Lender) of the following, each, each of which shall be originals or facsimiles or Adobe PDFs delivered by electronic mail (followed promptly by originals) unless otherwise notedspecified:
(i) from each party hereto, dated a counterpart of this Agreement executed by such party; and
(ii) a Revolving Loan Note executed by the First Amendment Borrower in favor of each Lender that has requested a Revolving Loan Note at least two (2) Business Days prior to the Effective Date.
(b) The Guarantee Requirement shall have been satisfied.
(c) The Collateralized L/C Collateral Requirement shall have been satisfied.
(d) The Administrative Agent shall have received:
1. Copies (i) copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent body of each Credit Party authorizing the Transactions to which such Credit Party is a party, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Credit Party;
(ii) a certificate of the Secretary or Assistant Secretary of each Credit Party certifying the names and true signatures of the officers of such Credit Party authorized to execute, deliver and perform, as applicable, this Agreement and all amendments other Loan Documents to be delivered by such Credit Party hereunder;
(iii) the Organizational Documents articles or certificate of Company executed incorporation or equivalent document of each Credit Party as in effect on or after February 19, 2008, in each casethe Effective Date, certified by the Secretary of State (or similar, applicable Governmental Authority) of Delaware or, if such document is its state of incorporation or organization as of a type that may not be so certifiedrecent date;
(iv) the bylaws or equivalent documents of each Credit Party as in effect on the Effective Date, certified by the secretary Secretary or similar officer Assistant Secretary of Company, together with such Credit Party as of the Effective Date;
(v) a certificate of good standing certificate or equivalent document for each Credit Party from the Secretary of State (or similar, applicable Governmental Authority) of the State its state of Delawareincorporation or organization as of a recent date; and
(vi) certified copies of Uniform Commercial Code, tax and judgment lien searches, or equivalent reports or searches, each dated of a recent date listing all effective financing statements, lien notices or comparable documents that name any Credit Party as debtor and that are filed in those state and county jurisdictions in which any Credit Party is organized or maintains its principal place of business and such other searches that the Administrative Agent reasonably deems necessary and requested at least five (5) days prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. (e) The Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementwritten opinion, (ii) updated schedules reasonably acceptable to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory Administrative Agent in form and substance (addressed to the Administrative Agent and the Lenders and dated the Effective Date), from each of Xxxxxx Xxxxxx LLP, counsel for the Credit Parties.
(f) The Administrative Agent shall have been paid (i) all costs, fees and expenses (including, without limitation, Attorney Costs of the Administrative Agent), the Arrangers, the Bookrunners and recording taxes and fees) to the extent then due and payable to the Administrative Agent, the Arrangers or the Bookrunners and (ii) all other compensation contemplated by the Commitment Letter and each Fee Letter payable to the Administrative Agent, the Arrangers, the Bookrunners or the Lenders on or before the Effective Date, in each case reflecting to the recent name change of Companyextent invoiced at least two (2) Business Days prior to the Effective Date.
C. (g) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement shall have been paid in full, the commitments under the Existing Credit Agreement shall have been terminated and all guarantees and Liens existing in connection with the Existing Credit Agreement shall have been discharged and released, and the Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United Statesreasonably satisfactory evidence thereof.
D. (h) Each Credit Party shall have provided the documentation and other information to the Administrative Agent as the Lenders reasonably determine are required by bank regulatory authorities under applicable “know-your-customer” and Anti-Money Laundering Laws, including the PATRIOT Act, at least two (2) Business Days prior to the Effective Date as has been reasonably requested in writing at least four (4) Business Days prior to the Effective Date by the Lenders. The Borrower shall have delivered a Beneficial Ownership Certification to the Administrative Agent and each Lender requesting one.
(i) The Administrative Agent and the Lenders shall have received copies at least five (5) calendar days prior to the Effective Date (i) the Historical Financial Statements and (ii) the most recent Annual Statements and Quarterly Statements (for those periods ending after delivery of one the most recent Annual Statements for each Insurance Subsidiary that is a Restricted Subsidiary) of each Insurance Subsidiary that is a Restricted Subsidiary as filed with the insurance regulator of such Insurance Subsidiary’s jurisdiction of domicile on or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Companyprior to such date, in form each case, to the extent such reports and substance reasonably satisfactory to Administrative Agent statements have been prepared by such Insurance Subsidiaries.
(j) All of the representations and its counsel, dated warranties contained herein or in any Loan Document shall be true and correct in all material respects on and as of the First Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
(k) No Default or Event of Default shall have occurred and be continuing on and as of the Effective Date. The Administrative Agent shall promptly notify the Borrower and the Lenders of the Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received binding on all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestparties hereto.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (KKR & Co. Inc.)
Conditions to Effectiveness. The Waiver and the amendments to the Credit Agreement set forth in Section 1 of this Amendment 2 above (other than Section 2(b)) shall become effective only upon on the satisfaction of first date on which the Administrative Agent shall have received counterparts hereof executed by the Borrower, CSC and the Majority Lenders or, as to any Lender, evidence satisfactory to the Administrative Agent that such Lender has executed this Amendment.
(a) Section 4 and the amendments to the Credit Agreement set forth in Section 2(b) shall become effective on the first date (the “Guarantor Effective Date”) on which the following conditions are satisfied:
(i) The Administrative Agent shall have received the following:
(a) counterparts hereof executed by the Borrower, CSC and all of the following conditions precedent Lenders or, as to any Lender, evidence satisfactory to the Administrative Agent that such Lender has executed this Amendment;
(b) an Assumption Agreement executed by the date Borrower, CSC and Xxxxxxx substantially in the form of satisfaction Annex 1 hereto relating to Xxxxxxx’x assumption of such conditions being referred to herein as the “First Amendment Effective Date”):obligations of CSC under the Credit Agreement;
A. On or before (c) a certificate of an authorized officer of Xxxxxxx, dated the First Amendment Guarantor Effective Date, Company shall deliver (A) certifying the names and true signatures of the officers of Xxxxxxx authorized to Lenders sign the Assumption Agreement and any other documents to be delivered by Xxxxxxx in connection with the Assumption Agreement, (or to Administrative Agent for Lenders with sufficient originally executed copiesB) attaching and certifying the correctness and completeness of the copies of Xxxxxxx’x Certificate of Incorporation and Bylaws, where appropriate, for each Lender(C) attaching and certifying the following, each, unless otherwise noted, dated correctness and completeness of copies of the First Amendment Effective Date:
1. Copies resolutions of all amendments to the Organizational Documents Board of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary Directors or similar officer governing body of CompanyXxxxxxx, together with approving the execution, delivery and performance of the Assumption Agreement and the other Loan Documents to which Xxxxxxx is to be a party and (D) attaching a good standing certificate of Xxxxxxx from the Secretary state of State of the State of Delawareits organization, each dated a recent date prior to the First Amendment Guarantor Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined belowd) and the Deed of Trust, certified as no later than five Business Days in advance of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Guarantor Effective Date, all corporate documentation and other proceedings taken information reasonably requested with respect to Xxxxxxx in writing by any Lender at least ten Business Days in advance of the Guarantor Effective Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; #89253461v17
(e) a certificate of an authorized officer of Xxxxxxx, dated the Guarantor Effective Date, stating that the representations and warranties of Xxxxxxx (after giving effect to this Amendment including Section 2(b) hereof) contained in Article IV of the Credit Agreement are correct and that no Event of Default or Potential Event of Default exists on and as of the Guarantor Effective Date; and
(f) a favorable legal opinion of in-house legal counsel to Xxxxxxx, dated the Guarantor Effective Date; and
(g) a favorable opinion of CMS Xxxxxxx XxXxxxx LLP, dated the Guarantor Effective Date; and
(ii) The Merger shall have been consummated or shall be taken in connection consummated substantially concurrently with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestGuarantor Effective Date.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date on which each of the following conditions precedent is satisfied:
(a) The Administrative Agent’s receipt of the date following, each of satisfaction which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(1) counterparts of such conditions being referred this Amendment executed by (A) each Loan Party and (B) the Administrative Agent;
(2) Consents executed by the Required Lenders; and
(3) a Note executed by a Responsible Officer of the Borrower in favor of each Lender requesting a Note at least two (2) Business Days prior to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment No. 1 Effective Date, Company shall deliver if any.
(4) an opinion of Xxxxxxxx & Xxxxx LLP, New York counsel to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise notedLoan Parties, dated the First Amendment No. 1 Effective Date:
1. Copies of all amendments Date and addressed to each Arranger, the Administrative Agent and the Lenders, substantially in the form previously provided to the Organizational Documents Administrative Agent;
(5) (A) a certificate as to the good standing of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is Loan Party as of a type that may not be so certifiedrecent date, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State state of Delaware, its organization or a similar Governmental Authority and (B) a certificate of a Responsible Officer of each Loan Party dated the Amendment No. 1 Effective Date and certifying (I) to the effect that (w) attached thereto is a true and complete copy of the certificate or articles of incorporation or organization such Loan Party certified as of a recent date prior to by the First Secretary of State of the state of its organization, or in the alternative, certifying that such certificate or articles of incorporation or organization have not been amended since the Closing Date, and that such certificate or articles are in full force and effect, (x) attached thereto is a true and complete copy of the by-laws or operating agreements of each Loan Party as in effect on the Amendment No. 1 Effective Date;
2. Resolutions , or in the alternative, certifying that such by-laws or operating agreements have not been amended since the Closing Date and (y) attached thereto is a true and complete copy of its Board resolutions duly adopted by the board of Directors approving and directors, board of managers or member, as the case may be, of each Loan Party authorizing the execution, delivery, delivery and performance of this Amendmentthe Loan Documents to which such Loan Party is a party, the Pledge Agreement Amendment (as defined below) and the Deed of Trustthat such resolutions have not been modified, certified as of the First Amendment Effective Date by the secretary rescinded or similar officer as being amended and are in full force and effect without modification or amendment;
3. Signature effect, and (II) as to the incumbency certificates and specimen signature of its officers each officer executing any Loan Document on behalf of any Loan Party and signed by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to this Amendment, the Pledge Agreement Amendment and the Deed of Trustclause (B); and
4(6) a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in paragraphs (e) and (f) of this Section 4 and that the Term B-1 Loans meet the requirements and conditions to be Replacement Term Loans.
(b) Receipt of Consents from Term Lenders and/or receipt of a Joinder executed by one or more Additional Term B-1 Lenders such that the aggregate principal amount of the Exchanged Term B Loans plus the aggregate principal amount of the Additional Term B-1 Commitments shall equal the aggregate principal amount of the outstanding Term B Loans immediately prior to the effectiveness of this Amendment.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of the Term Lenders immediately prior to the Amendment No. Executed copies 1 Effective Date, all accrued and unpaid interest on the Term B Loans to, but not including, the Amendment No. 1 Effective Date on the Amendment No. 1 Effective Date.
(d) All fees and expenses due to the Administrative Agent, the Arrangers and the Lenders (including, without limitation, pursuant to Section 6 hereof) required to be paid on the Amendment No. 1 Effective Date shall have been paid.
(e) No Default shall exist, or would result from the Amendment and related Credit Extension or from the application of the proceeds therefrom.
(f) The representations and warranties of the Borrower and each Subsidiary Guarantor contained in Article V of the Credit Agreement and Section 3 of this Amendment or any other Loan Document shall be true and the First Amendment to Pledge correct in all material respects on and Security Agreement dated as of the date hereof between Companywith the same effect as though made on and as of such date, its Subsidiaries 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; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective date.
(g) To the extent reasonably requested by an Additional Term B-1 Lender in writing not less than five (5) Business Days prior to the Amendment No. 1 Effective Date, the Administrative Agent (shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Borrower required by regulatory authorities under applicable “Pledge Agreement Amendment”)know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
B. (h) The Administrative Agent shall have received a Request for Credit Extension not later than 1:00 p.m. (iNew York time) a duly completed amendment to UCC financing statement, (ii) updated schedules on the Business Day prior to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting date of the recent name change of Company.
C. proposed Credit Extension. The Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company notify the Borrower and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment No. 1 Effective Date, Date and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel such notice shall be satisfactory in form conclusive and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestbinding.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this 3.1. This Amendment shall become effective only upon on the satisfaction of all date (the “Amendment No. 2 Effective Date”) on which:
(a) The Administrative Agent (or its counsel) shall have received from (i) the Administrative Agent, (ii) the Additional Initial B-2 Euro Term Lender, (ii) the Additional Initial B-2 Dollar Term Lender, (iii) the Continuing Term Lenders, (iv) Lenders constituting the Required Lenders (as defined in Exhibit A hereto) as of the following conditions precedent Amendment No. 2 Effective Date after giving effect to the incurrence of the Initial B-2 Euro Term Loans and Initial B-2 Dollar Term Loans and the prepayment of the Initial B-1 Euro Term Loans and Initial B-1 Dollar Term Loans, and (v) each Loan Party, (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to the Administrative Agent (which may include a telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received a customary written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 2 Effective Date) of Xxxxxxx Xxxxxxx & Xxxxxxxx, New York counsel for the Loan Parties. Each of the Borrower, Holdings and the Administrative Agent hereby instruct such counsel to deliver such legal opinion.
(c) The Administrative Agent shall have received such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates (or a representation that such Responsible Officers are the same as those whose signature and incumbency certificates were delivered to the Administrative Agent on the Closing Date), certificates of incorporation (or a representation that such certificates have not been amended since the Closing Date) and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party on the Amendment No. 2 Effective Date.
(d) The Borrower shall have paid to the Administrative Agent all fees, if applicable, and expenses due to the Administrative Agent and the Amendment No. 2 Arranger, as separately agreed in writing, on the Amendment No. 2 Effective Date, to the extent such fees and/or expenses are invoiced at least one business day prior to the Closing Date. All reasonable costs and expenses (including, without limitation, the reasonable fees, charges and disbursements of counsel for the Administrative Agent) of the Administrative Agent and the Amendment No. 2 Arranger in connection with this Amendment and the transactions contemplated hereby shall have been paid as separately agreed in writing, to the extent invoiced at least one business day prior to the Closing Date.
(e) The representations and warranties of each Loan Party set forth in Article V 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 of satisfaction this Amendment with the same effect as though made on and as of such conditions being referred date, except to herein 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; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of this Amendment or on such earlier date, as the “First case may be.
(f) At the time of and immediately after giving effect to this Amendment, no Default or Event of Default shall exist or would result from this Amendment or from the application of the proceeds therefrom.
(g) The Administrative Agent shall have received a certificate, dated the Amendment No. 2 Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (e) and (f) of this Section 3.1.
(h) The Administrative Agent shall have received a Committed Loan Notice with respect to the Initial B-2 Euro Term Loans and the Initial B-2 Dollar Term Loans to be made on the Amendment No. 2 Effective Date at the Administrative Agent’s Office at least three Business Days prior to the Amendment No. 2 Effective Date (or in each case, such shorter notice as is approved by the Administrative Agent in its reasonable discretion), and such Committed Loan Notice shall otherwise meet the requirements set forth in Section 2.02 of the Credit Agreement.
(i) The Administrative Agent shall have received a prepayment notice with respect to the Initial B-1 Euro Term Loans and the Initial B-1 Dollar Term Loans to be made on the Amendment No. 2 Effective Date at the Administrative Agent’s Office at least three Business Days prior to the Amendment No. 2 Effective Date (or in each case, such shorter notice as is approved by the Administrative Agent in its reasonable discretion), and such prepayment notice shall otherwise meet the requirements set forth in Section 2.05 of the Credit Agreement.
(j) The Borrower shall have paid to the Administrative Agent all accrued and unpaid interest on the Initial B-1 Euro Term Loans to, but not including, the Amendment No. 2 Effective Date”):.
A. On or before (k) The Borrower shall have paid to the First Administrative Agent all accrued and unpaid interest on the Initial B-1 Dollar Term Loans to, but not including, the Amendment No. 2 Effective Date.
(l) The Administrative Agent shall have received, no later than three Business Days in advance of the Amendment No. 2 Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copiesi) all documentation and other information about the Loan Parties that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, where appropriateincluding without limitation the Patriot Act and (ii) if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, for each Lendera Beneficial Ownership Certification (as defined in Exhibit A hereto) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments in relation to the Organizational Documents of Company executed on or after February 19, 2008Borrower, in each case, certified by to the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date extent reasonably requested in writing at least seven Business Days prior to the First Amendment No. 2 Effective Date;
2. Resolutions Date by the Additional Initial B-2 Euro Term Lender or the Additional Initial B-2 Dollar Term Lender through the Administrative Agent (provided that, upon the execution and delivery by such Lender of its Board of Directors approving and authorizing the execution, delivery, and performance of signature page to this Amendment, the Pledge Agreement Amendment condition set forth in this clause (as defined belowl) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment shall be deemed to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”be satisfied).
B. (m) The Administrative Agent shall have received the results of a recent Lien search in each of the jurisdictions in which Uniform Commercial Code financing statements, or other filings or recordations should be made to evidence or perfect security interests in the Collateral, and such search shall reveal no Liens on any of the Collateral, except for Liens permitted by Section 7.01 of the Credit Agreement or discharged on or prior to the Amendment No. 2 Effective Date pursuant to documentation reasonably satisfactory to the Administrative Agent.
(n) With respect to each Mortgaged Property, the Collateral Agent shall have received a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination, and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency to be a special flood hazard area, shall have received (i) a notice about special flood hazard area status and flood disaster assistance duly completed amendment to UCC financing statement, executed by the Borrower and (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied evidence of flood insurance as required by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as Section 6.07 of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably requestCredit Agreement.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Avantor, Inc.)
Conditions to Effectiveness. Section 1 This Agreement shall be effective upon satisfaction (or waiver by the Administrative Agent and all of this Amendment shall become effective only upon the satisfaction of all Purchasers) of the following conditions precedent precedent:
(a) receipt by the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally of counterparts of (x) this Agreement duly executed copiesby the Credit Parties, where appropriate, for each Lenderthe Purchasers and the Administrative Agent and (y) the following2022 Private Placement Shares Agreement, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies duly executed by a Responsible Officer of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in Super Holdings and by each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of CompanyPurchaser party thereto, together with all exhibits and schedules thereto;
(b) receipt by the Administrative Agent of a good standing certificate from the Secretary favorable opinion of State of the State of DelawareRopes & Xxxx LLP, each dated a recent date prior as New York counsel to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the executionCredit Parties, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules addressed to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counseleach Purchaser, in connection with this Agreement, dated as of the First Amendment Effective Date, and setting forth in form and substance reasonably satisfactory to the matters as Administrative Agent;
(c) receipt by the Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before a favorable opinion of A&L Goodbody LLP, as Irish counsel to the Credit Parties, addressed to the Administrative Agent and each Purchaser, in connection with this Agreement, dated as of the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance reasonably satisfactory to the Administrative Agent.
(d) receipt by the Administrative Agent of the following, each of which shall be originals or facsimiles (followed promptly by originals), in form and substance reasonably satisfactory to the Administrative Agent and such its legal counsel:
(i) copies of the Organization Documents of each Credit Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Credit Party to be true and correct as of the First Amendment Effective Date;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent may require evidencing the identity, authority and such counsel shall have received all such counterpart originals or certified copies capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement; and
(iii) such documents and certifications as the Administrative Agent may reasonably requestrequire to evidence that each Credit Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation; and
(e) Super Holdings shall have entered into share subscription agreements with each of Avista Healthcare Partners, L.P., Xxxxx Xxxxxxxx and Xxxxx Xxxxxx for the issuance of its Qualified Capital Stock referred to in Section 2.B.(e). Without limiting the generality of the provisions of the last paragraph of Section 10.03 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 2.A., each Purchaser that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Purchaser unless the Administrative Agent shall have received notice from such Purchaser prior to the proposed First Amendment Effective Date specifying its objection thereto.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date (such date, the “Amendment No. 1 Effective Date”) each of the following conditions precedent shall have been satisfied (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”or waived):
A. On (a) The Agent’s receipt of the following, each of which shall be originals or before facsimiles or electronic copies unless otherwise specified:
(1) counterparts of this Amendment executed by each Borrower, each other Loan Party, the First Agent, each Additional Term B-1 Lender and each Incremental Term B-1 Lender; and
(2) a Note executed by a Responsible Officer of each of the Borrowers in favor of each Lender requesting a Note at least three (3) Business Days prior to the Amendment No. 1 Effective Date, Company shall deliver to Lenders if any.
(or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lenderb) The Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies unless otherwise noted, dated the First Amendment Effective Datespecified:
(1. Copies ) favorable written opinions of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statementXxxxxxxx & Xxxxxxxx LLP, as special New York counsel for Parent, the Borrowers and the Guarantors and (ii) updated schedules to Xxxxxxxxxxx Xxxxxxxxx, PLLC, as special Michigan counsel for the Pledge Agreement, and Loan Parties (iiiincluding the Lead Borrower) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent)organized under the laws of Michigan, in each case reflecting (A) dated the recent name change of Company.
C. Administrative Amendment No. 1 Effective Date, (B) addressed to the Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, on the Amendment No. 1 Effective Date and (C) in form and substance reasonably satisfactory to Administrative the Agent covering customary matters relating to the Amendment and the other Loan Documents executed as of the Amendment No. 1 Effective Date;
(2) a certificate (or certificates) of the Secretary or Assistant Secretary, statutory director, management board members or similar or other authorized officer of each Loan Party (other than the English Loan Parties, the Jersey Loan Parties, the Swedish Loan Parties, the Belgian Loan Parties, the Irish Loan Parties, the Polish Loan Parties, the Spanish Loan Parties and the Mexican Loan Parties), dated the Amendment No. 1 Effective Date and certifying, to the extent applicable:
(i) that attached thereto is a true and complete copy of the certificate or articles of incorporation, any certificates of incorporation on change of name, certificates of incorporation on re-registration as a public limited company, certificate of limited partnership, certificate of formation or other equivalent constituent or constitutional and governing documents, including all amendments thereto, of such Loan Party certified as of a recent date by the applicable Secretary of State (or other similar official or Governmental Authority) of the jurisdiction of its organization or incorporation or by the Secretary or Assistant Secretary, statutory director, management board members or similar or other authorized officer of such Loan Party or by a notary public or other person duly authorized by the constituent or constitutional documents of such Loan Party. In relation to each Luxembourg Loan Party the above shall include (i) an excerpt issued by the RCS dated no earlier than 1 Business Day prior to the Amendment No. 1 Effective Date and (ii) a certificate issued by the RCS dated no earlier than 1 Business Day prior to the Amendment No. 1 Effective Date stating that no judicial decision pursuant to which it would be subject to one of the judicial proceedings including, but not limited to, bankruptcy (faillite), reprieve from payment (sursis de paiement), controlled management (gestion contrôlée) or composition with creditors (concordat préventif de la faillite), has been registered with the RCS by application of article 13, items 2 to 12 and article 14 of the Luxembourg law of 19 December 2002 on the Register of Commerce and Companies and on the accounting and annual accounts of undertakings, as amended;
(ii) that in the case of the Lead Borrower and any Guarantor that is a U.S. Subsidiary, attached thereto is a true and complete copy of a certificate as to the good standing (or similar certification) of the Lead Borrower or such Guarantor, as applicable (to the extent that such concept exists in such jurisdiction), as of a recent date from the applicable Secretary of State (or other similar official or Governmental Authority);
(iii) that attached thereto is a true and complete copy of the by-laws (or articles of association, articles of incorporation, partnership agreement, limited liability company agreement or other equivalent constituent or constitutional and governing documents, if any) of such Loan Party as in effect on the Amendment No. 1 Effective Date and at all times since a date prior to the date of the resolutions described in the following clause (iv);
(iv) that attached thereto is a true and complete copy of resolutions or meeting minutes (or certificates thereof) duly adopted by the shareholders, members, general partner or Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of each of the Loan Documents to which such person is a party on the Amendment No. 1 Effective Date and that such resolutions or meeting minutes have not been modified, rescinded or amended and are in full force and effect on the Amendment No. 1 Effective Date;
(v) to the extent not covered in (i), (iii) or (iv) above, that attached thereto is a true and complete copy of any powers-of-attorney granted by such Loan Party to the individuals executing each of the Loan Documents to which such person is a party on the Amendment No. 1 Effective Date and that such powers-of-attorney have not been limited, revoked or amended and are in full force and effect on the Amendment No. 1 Effective Date;
(vi) as to the incumbency and specimen signature of each officer or authorized signatory executing this Amendment or any other Loan Document delivered in connection herewith on the Amendment No. 1 Effective Date on behalf of such Loan Party; and
(vii) in the case of each Luxembourg Loan Party and each Irish Loan Party, confirming that (a) borrowing or guaranteeing or securing, as appropriate, the entry into the Loan Documents and the performance of its obligations thereunder would not cause any borrowing, guarantee, security or similar limit binding on any Loan Party to be exceeded, and (b) each copy document relating to it specified in this Section 4 (Conditions to Effectiveness) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement; and in relation to each Luxembourg Loan Party, confirming that (a) it rents the premises of its registered office located at 00X, xxxxxx Xxxx X. Xxxxxxx, L-1855 Luxembourg and (b) it is not subject to bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), or similar proceedings; the relevant company has not been subject to conservatory measures such as attachment order (saisie conservatoire) or garnishment (saisie attribution or saisie arrêt) and no application, petition, order or resolution has been made, or taken by the relevant company or to its knowledge by any other person for the appointment of a commissaire, curateur, liquidateur or similar officer for its administration, winding-up or similar proceedings.
(c) The Borrowers shall have paid (or caused to be paid) to the Agent, for the ratable account of each Lender immediately prior to the Amendment No. 1 Effective Date, substantially concurrently with the making of the Term B-1 Loans, all accrued and unpaid interest on the Existing Term Loans to, but not including, the Amendment No. 1 Effective Date.
(d) All fees and expenses due to the Agent, the Amendment No. 1 Arranger and the Lenders (including, without limitation, pursuant to Section 6 hereof and any fees required to be paid to them by the Borrower as mutually agreed prior to the Amendment No. 1 Effective Date) required to be paid on the Amendment No. 1 Effective Date shall have been paid, in each case in respect of expenses, to the extent invoiced in reasonable detail prior to the date that is three (3) Business Days (or such lesser period as may be reasonably acceptable to the Lead Borrower) prior to the date hereof.
(e) Immediately before and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing or would result from the Amendment and related Credit Event or from the application of the proceeds therefrom.
(f) Immediately before and immediately after giving effect to this Amendment, the representations and warranties of each Loan Party set forth in (i) Article III of the Credit Agreement or (ii) any other Loan Document in effect on the Amendment No. 1 Effective Date, in each case, shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided, that to the extent such representations and warranties specifically relate to an earlier date, such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Agent shall have received a certificate of a Responsible Officer of the Parent certifying compliance with the conditions in clauses (e) and (f) above.
(h) The Agent and its counselthe Lenders (as requested through the Agent) shall have received at least three (3) Business Days prior to the Amendment Effective No. 1 Date (i) all documentation and other information required with respect to the Borrowers by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, and (ii) a Beneficial Ownership Certification in relation to any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, in each case, to the extent requested in writing at least ten (10) Business Days prior to the Amendment Effective No. 1 Date.
(i) The Agent shall have received a Borrowing Request in respect of the Term B-1 Loans (including the Incremental Term B-1 Loans) not later than 12:00 noon, New York City time, at least three (3) Business Days prior to the date of the proposed Credit Event (or such later time on such date as may be agreed by the Agent).
(j) The Agent shall have received a notice of prepayment of the Existing Term Loans pursuant to Section 2.18 of the Credit Agreement.
(k) The Agent shall have received a solvency certificate dated as of the First Amendment No. 1 Effective Date, and setting forth Date in substantially the form of Exhibit C to the Credit Agreement from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent certifying as to the matters as Administrative Agent acting on behalf of Lenders may reasonably requestset forth therein.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay (l) With respect to each Lender executing this Amendment improved Mortgaged Property, a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and, if the area in which any improvements located on any Mortgaged Property is designated a “special flood hazard area” by the Federal Emergency Management Agency (or before any successor agency), evidence of flood insurance satisfying the close requirements of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% Section 5.02 of such Lender’s Revolving Loan Exposurethe Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. Section 1 of this This Amendment shall become --------------------------- effective only upon (the satisfaction actual date of all such effectiveness, the "Seventh Amendment ----------------- Effective Date") as of the following conditions precedent date first above written when: --------------
(a) This Amendment shall have been duly executed and delivered by each of the date of satisfaction of such conditions being referred to herein as parties hereto.
(b) An initial Daily Borrowing Base Certificate, dated the “First Amendment Effective Date”):
A. On or before the First Seventh Amendment Effective Date, shall have been duly executed and delivered by the Company.
(c) A certificate of the chief financial officer of the Company, dated the Seventh Amendment Effective Date, in the form of Exhibit I hereto --------- shall have been duly executed and delivered by the Company.
(d) The Acknowledgment and Consent dated as of the date hereof by the Company and Pameco Investment Company, Inc. shall deliver have been duly executed and delivered by each of the parties thereto.
(e) The Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party, dated as of the Seventh Amendment Effective Date, and certifying (i) that attached thereto is a true and complete copy of the resolutions (which resolutions are in form and substance reasonably satisfactory to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State board of Delawaredirectors of such Loan Party authorizing, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing as applicable, the execution, delivery, delivery and performance of this Amendment, the Pledge Agreement Acknowledgment and Consent attached hereto and related matters, certified by the Secretary or an Assistant Secretary of such Loan Party as of the Seventh Amendment Effective Date and (ii) as defined belowto the incumbency and specimen signature of such Loan Party's officers executing this Amendment and all other documents required or necessary to be delivered hereunder or in connection herewith. Such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate.
(f) The Agent shall have received true and complete copies of the Deed certificate of Trustincorporation and by-laws of each Loan Party, certified as of the First Seventh Amendment Effective Date as complete and correct copies thereof by the secretary Secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies an Assistant Secretary of such documents as Administrative Agent may reasonably requestLoan Party.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Credit Agreement (Pameco Corp)
Conditions to Effectiveness. Section 1 The effectiveness of this Amendment and the obligations of the Term B-5 Lenders to make the Term B-5 Loans shall become effective only upon on the satisfaction of all of Amendment No. 6 Effective Date, which shall be the first Business Day on which the following conditions precedent are satisfied or waived:
(i) the date Administrative Agent (or its counsel) shall have received counterparts of satisfaction this Amendment or Amendment No. 6 Consents that, when taken together, bear the signatures of such conditions being referred (A) each Amendment No. 6 Cashless Option Lender and each Amendment No. 6 Post-Closing Option Lender, (B) the Administrative Agent, (C) the Additional Term B-5 Lender, (D) the Borrower and (E) each Guarantor;
(ii) the Administrative Agent shall have received a notice of Borrowing for the Additional Term B-5 Loans (whether in writing or by telephone) in accordance with the Credit Agreement;
(iii) the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(A) a favorable opinion of Xxxxx Day, counsel for the Loan Parties, in a form and substance reasonably satisfactory to herein the Administrative Agent;
(B) a certificate from a Responsible Officer of each Loan Party dated as of the “First Amendment Effective Date”):
A. On or before the First Amendment No. 6 Effective Date, Company shall deliver and attaching the documents referred to Lenders in clause (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each LenderC) the following, each, unless otherwise noted, dated the First Amendment Effective Date:below;
(1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State ) resolutions of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the execution, delivery, delivery and performance of this Amendmentthe Amendment (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the Pledge Agreement Amendment (as defined below) and the Deed extensions of Trustcredit contemplated hereunder, certified as of the First Amendment No. 6 Effective Date by the its secretary, an assistant secretary or similar officer a Responsible Officer as being in full force and effect without modification or amendment;
3. Signature amendment and incumbency certificates (2) a good standing certificate as of its officers executing this Amendmenta recent date from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, the Pledge Agreement Amendment and the Deed of Trustorganization or formation; and
4. Executed copies (D) an Officer’s Certificate from a Responsible Officer of the Borrower certifying as to compliance with clause (iv) below;
(iv) immediately before and immediately after giving effect to this Amendment and the First Amendment borrowing of or exchange into the Term B-5 Loans and to Pledge and Security Agreement dated as the application of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received any proceeds therefrom (i) a duly completed amendment to UCC financing statement, no Default or Event of Default shall exist and (ii) updated schedules all of the representations and warranties contained in the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects (or in all respects where qualified by materiality or material adverse effect) at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects where qualified by materiality or material adverse effect) as of such earlier date);
(v) the representations and warranties of each Loan Party set forth in Section 5 below shall be true and correct in all material respects (or in all respects where qualified by materiality or material adverse effect); and
(vi) the fees in the amounts previously agreed in writing by Xxxxx Fargo Securities, LLC to be received on the Amendment No. 6 Effective Date and all reasonable and documented or invoiced out-of-pocket costs and expenses (including the reasonable fees, charges and disbursements of McGuireWoods, LLP, as counsel to the Pledge Agreement, Amendment No. 6 Arrangers and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to the Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as of the First Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment Effective Date, all corporate and other proceedings taken or to be taken ) incurred in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agentfor which invoices have been presented at least one (1) Business Day prior to the Amendment No. 6 Effective Date shall, acting on behalf upon the Borrowing of Lendersthe Term B-5 Loans, and its counsel shall have been, or will be satisfactory substantially simultaneously, paid in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestfull.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
Appears in 1 contract
Samples: Amendment Agreement (Polyone Corp)
Conditions to Effectiveness. Section 1 of this This Amendment shall become effective only upon on the satisfaction of all date on which each of the following conditions precedent is satisfied:
(a) The Administrative Agent’s receipt of the date following, each of satisfaction which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified, and each executed by a Responsible Officer of such conditions being referred the Borrower:
(1) executed counterparts of this Amendment; and
(2) a Note executed by the Borrower in favor of each Lender requesting a Note at least two (2) Business Days prior to herein as the “First Amendment Effective Date”):
A. On or before the First Amendment No. 3 Effective Date, Company shall deliver to Lenders if any.
(or to b) The Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) Agent’s receipt of the following, each, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise notedspecified;
(1) an opinion of Xxxxxxx Procter LLP, New York counsel for the Loan Parties (addressed to the Administrative Agent and the Lenders and dated the First Amendment No. 3 Effective Date:);
1. Copies (2) (i) a copy of all amendments each Organizational Document of the Borrower and the Guarantors and, to the Organizational Documents of Company executed on or after February 19, 2008, in each caseextent applicable, certified by the Secretary as of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date by the appropriate governmental official (or a representation that such Organizational Documents have not been amended since the Closing Date); (ii) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party as of the Amendment No. 3 Effective Date and prior to the First Amendment Effective Date;
2. Resolutions funding of its Board the Term B-1 Loans; (iii) resolutions of Directors the board of directors or similar governing body of the Borrower and the Guarantors approving and authorizing the execution, delivery, delivery and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed other Loan Documents to which such Loan Party is a party as of Trustthe Amendment No. 3 Effective Date and prior to the funding of the Term B-1 Loans, certified as of the First Amendment No. 3 Effective Date by the secretary or similar officer such Loan Party as being in full force and effect without modification or amendment; and (iv) a good standing certificate (to the extent such concept is known in the relevant jurisdiction) from the applicable Governmental Authority of the Borrower’s and the Guarantors’ respective jurisdiction of incorporation, organization or formation dated a recent date prior to the Amendment No. 3 Effective Date;
(3. Signature ) a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in paragraphs (f) and incumbency certificates (g) of its officers executing this Amendment, Section 3 and that the Pledge Agreement Amendment Term B-1 Loans meet the requirements and the Deed of Trustconditions to be Replacement Term Loans; and
(4. Executed copies of this Amendment ) a Guarantor Consent and the First Amendment to Pledge and Security Agreement Reaffirmation, dated as of the date hereof between Company, its Subsidiaries and Administrative Agent executed by each of the Guarantors (the “Pledge Agreement AmendmentGuarantor Consent and Reaffirmation Agreement”), whereby each of the Guarantors consents to this Amendment and reaffirms each Lien granted by it to the Administrative Agent for the benefit of the Secured Parties under each of the Loan Documents to which it is a party.
B. Administrative Agent (c) The aggregate principal amount of the Tranche B-1 Term Commitments shall equal the aggregate principal amount of the outstanding Term Loans immediately prior to the effectiveness of this Amendment.
(d) The Borrower shall have received (i) a duly completed amendment to UCC financing statement, (ii) updated schedules paid to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting for the recent name change of Company.
C. Administrative Agent shall have received cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, in form and substance reasonably satisfactory to Administrative Agent and its counsel, dated as ratable account of the First Term Lenders immediately prior to the Amendment Effective Date, and setting forth the matters as Administrative Agent acting on behalf of Lenders may reasonably request.
E. On or before the First Amendment No. 3 Effective Date, all corporate accrued and other proceedings taken or to be taken in connection with unpaid interest on the transactions contemplated hereby and all documents incidental thereto Term Loans to, but not previously found acceptable by Administrative Agentincluding, acting the Amendment No. 3 Effective Date on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
F. Company shall pay to each Lender executing this the Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.No. 3
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Conditions to Effectiveness. Section 1 of this Amendment shall become effective only upon Upon the satisfaction or waiver of all each of the following conditions precedent conditions, this Agreement shall be deemed to be effective (the date of satisfaction of such conditions being referred to herein as satisfaction, the “First Amendment Effective Date”):
A. On or before the First Amendment Effective Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lendera) the following, each, unless otherwise noted, dated the First Amendment Effective Date:
1. Copies of all amendments to the Organizational Documents of Company executed on or after February 19, 2008, in each case, certified by the Secretary of State of Delaware or, if such document is of a type that may not be so certified, certified by the secretary or similar officer of Company, together with a good standing certificate from the Secretary of State of the State of Delaware, each dated a recent date prior to the First Amendment Effective Date;
2. Resolutions of its Board of Directors approving and authorizing the execution, delivery, and performance of this Amendment, the Pledge Agreement Amendment (as defined below) and the Deed of Trust, certified as of the First Amendment Effective Date by the secretary or similar officer as being in full force and effect without modification or amendment;
3. Signature and incumbency certificates of its officers executing this Amendment, the Pledge Agreement Amendment and the Deed of Trust; and
4. Executed copies of this Amendment and the First Amendment to Pledge and Security Agreement dated as of the date hereof between Company, its Subsidiaries and Administrative Agent (the “Pledge Agreement Amendment”).
B. Administrative Agent shall have received counterparts of this Agreement executed by the Administrative Agent and each of the Credit Parties;
(ib) a duly completed amendment to UCC financing statement, (ii) updated schedules to the Pledge Agreement, and (iii) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Administrative Agent), in each case reflecting the recent name change of Company.
C. Administrative Agent shall have received cover sheets an executed signature page or Lender Authorization directing the Administrative Agent to execute this Agreement on its behalf from each of the affected Lenders and all of the initial Tranche B-1 Term Lenders;
(c) the Borrower shall have paid (i) to the Administrative Agent and the Arranger all fees and reasonable out of pocket costs and expenses incurred by them or their respective Affiliates in connection with this Agreement and (ii) the reasonable fees, disbursements and other documents charges of counsel for the Administrative Agent and its Affiliates;
(d) the Borrower shall deliver or instruments required cause to be filed in order to create or perfect Liens in all intellectual property of Company and its Subsidiaries in the United States.
D. Lenders shall have received copies of one or more favorable written opinions of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel for Company, delivered a certificate in form and substance reasonably satisfactory to the Administrative Agent and its counsel, dated as executed by a Responsible Officer of the First Amendment Effective DateBorrower certifying that:
(i) either (A) the articles of incorporation (or equivalent) and bylaws (or equivalent) of each Credit Party have not been amended, restated, supplemented or otherwise modified since the Closing Date (or the most recent date of delivery to the Administrative Agent) or (B) attached thereto are true, correct and setting forth complete copies of any amendments, supplements or modifications of any articles of incorporation (or equivalent) and bylaws (or equivalent) entered into since the matters Closing Date (or the most recent date of delivery to the Administrative Agent);
(ii) attached thereto are such resolutions or other action duly adopted by the board of directors (or other governing body) of each Credit Party authorizing and approving the transactions contemplated hereunder and, the execution, delivery and performance of this Agreement; and
(iii) attached thereto are such certificates of good standing or the equivalent from each Credit Party’s jurisdiction of organization or formation, as Administrative Agent acting on behalf of Lenders may reasonably request.applicable; and
E. On or before (e) the First Amendment Effective DateCredit Parties shall have received all material governmental, all corporate shareholder and other proceedings taken or to be taken third party consents and approvals necessary in connection with the transactions contemplated hereby by this Agreement (including, without limitation, all consents and approvals required from any Agency under any of the Agency Agreements and from any Investor under any of the Investor Agreements that are Material Contracts) and all documents incidental thereto not previously found acceptable applicable waiting periods shall have expired without any action being taken by Administrative Agentany Person that could reasonably be expected to restrain, acting prevent or impose any material adverse conditions on behalf any of Lendersthe Credit Parties or such other transactions, and its counsel no law or regulation shall be satisfactory applicable which in form and substance to the reasonable judgment of the Administrative Agent and could reasonably be expected to have such counseleffect. Without limiting the generality of the provisions of Section 10.3 of the Credit Agreement, and for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has executed a Lender Authorization shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent and such counsel shall have received all notice from such counterpart originals or certified copies of such documents as Administrative Agent may reasonably requestLender prior to the proposed Effective Date specifying its objection thereto.
F. Company shall pay to each Lender executing this Amendment on or before the close of business (San Francisco time) on February 26, 2009, an amendment fee equal to 1.0% of such Lender’s Revolving Loan Exposure.
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