Conditions to this Agreement. This Agreement shall be and become effective as of the date hereof (the "Fourth Amendment Effective Date") when all of the conditions set forth in this Section 3.01 shall have been satisfied (as determined by the Successor Agent): (a) The Successor Agent shall have received counterparts of: (i) this Agreement, duly executed on behalf of each of the Borrower and the Required Lenders and the Tranche D Term Loan Lenders; (ii) the Joinder, Acknowledgement and Consent of Guarantors and Reaffirmation of Guaranty attached hereto as Schedule 3.01(a)(ii) (the "Joinder"), duly executed on behalf of the Parent and each Subsidiary of the Borrower that is a party to the Subsidiary Agreement; (iii) the Resignation and Assignment Agreement, duly executed on behalf of each of the Resigning Agent, the Successor Agent and the Borrower; (iv) a certificate in the form of Schedule 3.01(a)(iv) attached hereto, duly executed on behalf of the Borrower; (v) a certificate in the form of Schedule 3.01(a)(v) attached hereto, duly executed on behalf of the Borrower; and (vi) the Agent Fee Letter, duly executed on behalf of the Borrower. (b) The Successor Agent shall have received the following items for each of the Parent, the Borrower and each other Subsidiary party to the Subsidiary Agreement, in each case dated the Fourth Amendment Effective Date unless otherwise indicated: (i) copies of the articles or certificates of incorporation or other charter documents of such Person certified to be true, complete and correct as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation and/or certified by a secretary or assistant secretary of such Person to be true, complete and correct as of the Fourth Amendment Effective Date; (ii) a copy of the bylaws, partnership or operating agreement of such Person, as applicable, certified by a secretary or assistant secretary of such Person to be true and correct as of the Fourth Amendment Effective Date; (iii) resolutions of its Board of Directors or other authorizing body or Person approving and authorizing the execution, delivery and performance of this Agreement, certified as of the Fourth Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) certificates of good standing issued as of a reasonably recent date to the Fourth Amendment Effective Date by such Person's state of organization or formation. (v) signature and incumbency certificates of the officers of such Person executing this Agreement, any amendments to Security Documents and any other documents required to be delivered under subsection (a) of this Section 3.01 (collectively, the "Additional Documents"); and (c) The Successor Agent shall have received have received an originally executed copy of a written opinion of Drinker Biddle & Reath LLP, counsel for the Parent and the Companies, dated xx xx the Xxxxth Amendment Effective Date, addressed to the Agent and the Lenders and in form and substance reasonably satisfactory to the Successor Agent. (d) The Successor Agent shall have received payment from the Borrower, in Dollars and in immediately available funds, of the following: (i) for the benefit of each Lender that shall have delivered both (i) an executed non-binding consent letter to BAS on or prior to 5:00 p.m. (New York time) on October 17, 2003 and (ii) an executed counterpart of this Agreement to the Agent on or prior to 5:00 p.m. (New York time) on October 21, 2003, an amendment fee equal to 25 basis points on the amount equal to the sum of (i) the outstanding Initial Term Loans held by such Lender, plus (ii) the outstanding Incremental Term Loans held by such Lender, in each case after giving effect to the prepayments contemplated by Section 1.09A hereof; (ii) for the account of each Lender making Tranche D Term Loans, an upfront fee equal to 1.5% based on each Lender's final allocation of the Tranche D Term Loans, and (iii) for their own account, of all fees and expenses owing by the Borrower to the Successor Agent and/or Banc of America Securities LLC ("BAS"), including, without limitation, the fees and expenses of Moore & Van Allen PLLC, counsel for the Successor Xxxxx anx XXX. (e) The Successor Agent shall have received copies of certificates of insurance of the Borrower and its Subsidiaries evidencing insurance coverage and policy provisions meeting the requirements set forth in Section 6.02 hereof and naming the Successor Agent as additional insured or loss payee, as the case may be, on behalf of the Lenders. (f) The Successor Agent shall have received satisfactory evidence that the Borrower shall have delivered to the Term Loan Agent (as defined in the Parent Term Loan Agreement) a certificate of an Authorized Officer of the Borrower certifying that the Indebtedness represented by the Tranche D Term Loans is permitted to be incurred under Section 7.01(b)(ii) of the Parent Term Loan Agreement and qualifies as "Permitted Indebtedness" as defined in the Parent Term Loan Agreement, together with a copy of this Agreement. (g) The representations and warranties of the Borrower contained in Article IV hereof shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date. (h) The Resignation and Assignment Agreement shall have become effective in accordance with the terms thereof.
Appears in 1 contract
Conditions to this Agreement. This Agreement shall be and become effective as of the date hereof (the "Fourth Amendment Effective Date") when all of the conditions set forth in this Section 3.01 shall have been satisfied (as determined by the Successor Agent):
(a) The Successor Agent shall have received counterparts of:
(i) this Agreement, duly executed on behalf of each of the Borrower and the Required Lenders and the Tranche D Term Loan Lenders;
(ii) the Joinder, Acknowledgement and Consent of Guarantors and Reaffirmation of Guaranty attached hereto as Schedule 3.01(a)(ii) (the "Joinder"), duly executed on behalf of the Parent and each Subsidiary of the Borrower that is a party to the Subsidiary Agreement;
(iii) the Resignation and Assignment Agreement, duly executed on behalf of each of the Resigning Agent, the Successor Agent and the Borrower;
(iv) a certificate in the form of Schedule 3.01(a)(iv) attached hereto, duly executed on behalf of the Borrower;
(v) a certificate in the form of Schedule 3.01(a)(v) attached hereto, duly executed on behalf of the Borrower; and
(vi) the Agent Fee Letter, duly executed on behalf of the Borrower.
(b) The Successor Agent shall have received the following items for each of the Parent, the Borrower and each other Subsidiary party to the Subsidiary Agreement, in each case dated the Fourth Amendment Effective Date unless otherwise indicated:
(i) copies of the articles or certificates of incorporation or other charter documents of such Person certified to be true, complete and correct as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation and/or certified by a secretary or assistant secretary of such Person to be true, complete and correct as of the Fourth Amendment Effective Date;
(ii) a copy of the bylaws, partnership or operating agreement of such Person, as applicable, certified by a secretary or assistant secretary of such Person to be true and correct as of the Fourth Amendment Effective Date;
(iii) resolutions of its Board of Directors or other authorizing body or Person approving and authorizing the execution, delivery and performance of this Agreement, certified as of the Fourth Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment;
(iv) certificates of good standing issued as of a reasonably recent date to the Fourth Amendment Effective Date by such Person's state of organization or formation.
(v) signature and incumbency certificates of the officers of such Person executing this Agreement, any amendments to Security Documents and any other documents required to be delivered under subsection (a) of this Section 3.01 (collectively, the "Additional Documents"); and
(c) The Successor Agent shall have received have received an originally executed copy of a written opinion of Drinker Biddle Xxxxxx & Reath Xxxxx LLP, counsel for the Parent and the Companies, dated xx xx as of the Xxxxth Fourth Amendment Effective Date, addressed to the Agent and the Lenders and in form and substance reasonably satisfactory to the Successor Agent.
(d) The Successor Agent shall have received payment from the Borrower, in Dollars and in immediately available funds, of the following:
(i) for the benefit of each Lender that shall have delivered both (i) an executed non-binding consent letter to BAS on or prior to 5:00 p.m. (New York time) on October 17, 2003 and (ii) an executed counterpart of this Agreement to the Agent on or prior to 5:00 p.m. (New York time) on October 21, 2003, an amendment fee equal to 25 basis points on the amount equal to the sum of (i) the outstanding Initial Term Loans held by such Lender, plus (ii) the outstanding Incremental Term Loans held by such Lender, in each case after giving effect to the prepayments contemplated by Section 1.09A hereof;
(ii) for the account of each Lender making Tranche D Term Loans, an upfront fee equal to 1.5% based on each Lender's final allocation of the Tranche D Term Loans, and
(iii) for their own account, of all fees and expenses owing by the Borrower to the Successor Agent and/or Banc of America Securities LLC ("BAS"), including, without limitation, the fees and expenses of Moore Xxxxx & Van Allen Xxx Xxxxx PLLC, counsel for the Successor Xxxxx anx XXXAgent and BAS.
(e) The Successor Agent shall have received copies of certificates of insurance of the Borrower and its Subsidiaries evidencing insurance coverage and policy provisions meeting the requirements set forth in Section 6.02 hereof and naming the Successor Agent as additional insured or loss payee, as the case may be, on behalf of the Lenders.
(f) The Successor Agent shall have received satisfactory evidence that the Borrower shall have delivered to the Term Loan Agent (as defined in the Parent Term Loan Agreement) a certificate of an Authorized Officer of the Borrower certifying that the Indebtedness represented by the Tranche D Term Loans is permitted to be incurred under Section 7.01(b)(ii) of the Parent Term Loan Agreement and qualifies as "Permitted Indebtedness" as defined in the Parent Term Loan Agreement, together with a copy of this Agreement.
(g) The representations and warranties of the Borrower contained in Article IV hereof shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date.
(h) The Resignation and Assignment Agreement shall have become effective in accordance with the terms thereof.
Appears in 1 contract
Conditions to this Agreement. This Agreement shall be and become effective as The obligation of the date hereof (the "Fourth Amendment Effective Date") when all L/C Issuer and each Lender to enter into this Agreement is subject to satisfaction of the following conditions set forth in this Section 3.01 shall have been satisfied (as determined by precedent on or prior to the Successor Agent):Closing Date:
(a) The Successor Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent shall have received counterparts ofand each of the Lenders:
(i) executed counterparts of this Agreement, duly executed on behalf of sufficient in number for distribution to the Administrative Agent, each of the Borrower Lender and the Required Lenders and the Tranche D Term Loan LendersCompany;
(ii) the Joinder, Acknowledgement and Consent of Guarantors and Reaffirmation of Guaranty attached hereto as Schedule 3.01(a)(ii) (the "Joinder"), duly executed on behalf of the Parent and each Subsidiary of the Borrower that is a party to the Subsidiary Agreement;
(iii) the Resignation and Assignment Agreement, duly executed on behalf copies of each of the Resigning Security Documents or reaffirmations thereof, sufficient in number for distribution to the Administrative Agent, the Successor Agent each Lender and the Borrower;
(iv) a certificate in the form of Schedule 3.01(a)(iv) attached hereto, duly executed on behalf of the Borrower;
(v) a certificate in the form of Schedule 3.01(a)(v) attached hereto, duly executed on behalf of the Borrower; and
(vi) the Agent Fee Letter, duly executed on behalf of the Borrower.
(b) The Successor Agent shall have received the following items for each of the Parent, the Borrower and each other Subsidiary party to the Subsidiary Agreement, in each case dated the Fourth Amendment Effective Date unless otherwise indicated:
(i) copies of the articles or certificates of incorporation or other charter documents of such Person certified to be true, complete and correct as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation and/or certified by a secretary or assistant secretary of such Person to be true, complete and correct as of the Fourth Amendment Effective Date;
(ii) a copy of the bylaws, partnership or operating agreement of such Person, as applicable, certified by a secretary or assistant secretary of such Person to be true and correct as of the Fourth Amendment Effective DateCompany;
(iii) resolutions of its Board of Directors or other authorizing body 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 Agreement and the other Loan Documents or Person approving and authorizing the execution, delivery and performance of this Agreement, certified as of the Fourth Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendmentreaffirmations thereof to which such Loan Party is a party;
(iv) certificates of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing issued as of a reasonably recent date to the Fourth Amendment Effective Date by extent applicable 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 Person's state of organization or formation.qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) signature and incumbency certificates of the officers of such Person executing this Agreement, any amendments to Security Documents and any other documents evidence that all insurance required to be delivered under subsection maintained by the Loan Parties pursuant to the Loan Documents has been obtained and is in effect;
(avi) with respect to each Dutch Loan Party, an up to date extract from the Dutch Commercial Register (Handelsregister), of its deed of incorporation, its articles of association and an up to date copy of its shareholders register;
(vii) an opinion of Bxxx Xxxxxxxxx & Kxxx, PLLC, United States counsel to the Loan Parties addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and this Agreement as the Administrative Agent may reasonably request;
(viii) the results of Uniform Commercial Code searches and other evidence satisfactory to the Administrative Agent that there are no Liens upon the Collateral, other than Liens permitted pursuant to Section 3.01 7.01 and otherwise in form and substance satisfactory to the Administrative Agent; and
(collectivelyix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the "Additional L/C Issuer or the Required Lenders reasonably may require.
(b) Administrative Agent shall be satisfied that the Security Documents shall be effective to create in favor of the Administrative Agent a legal, valid and enforceable first (except for Liens permitted pursuant to Section 7.01 and entitled to priority under applicable law) security interest in and Lien upon the Collateral, along with, in form and substance satisfactory to the Lenders, evidence that all filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected;
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Syndication Agent, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings;
(d) No event that has a Material Adverse Effect shall have occurred and be continuing;
(e) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of any Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(f) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents";
(g) The Administrative Agent shall have received from each of the Loan Parties documentation and other information required by regulatory authorities under applicable “Know Your Customer” and Anti-Money Laundering Laws, as defined in Section 5.26(iii); and
(ch) The Successor All fees required to be paid to the Lenders on or before the Closing Date pursuant to the Fee Letter shall have been paid. Without limiting the generality of the provisions of the last paragraph of Section 9.03, (i) for purposes of determining compliance with the conditions specified in this Section, each Lender 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 Lender unless the Administrative Agent shall have received have received an originally executed copy of a written opinion of Drinker Biddle & Reath LLP, counsel for the Parent and the Companies, dated xx xx the Xxxxth Amendment Effective Date, addressed notice from such Lender prior to the Agent and the Lenders and in form and substance reasonably satisfactory to the Successor Agent.
(d) The Successor Agent shall have received payment from the Borrower, in Dollars and in immediately available funds, of the following:
(i) for the benefit of each Lender that shall have delivered both (i) an executed non-binding consent letter to BAS on or prior to 5:00 p.m. (New York time) on October 17, 2003 proposed Closing Date specifying its objection thereto and (ii) an executed counterpart in the event that Advance Funding Arrangements shall exist, the delivery by the Lender (x) of funds pursuant to such Advance Funding Arrangements (“Advance Funds”) and (y) its signature page to this Agreement shall constitute the request, consent and direction by such Lender to the Administrative Agent on or (unless expressly revoked by written notice from such Lender received by the Administrative Agent prior to 5:00 p.m. (New York timethe earlier to occur of funding or the Administrative Agent’s declaration that this Agreement is effective) on October 21, 2003, an amendment fee equal to 25 basis points withdraw and release to the Borrowers on the amount equal Closing Date the applicable funds of such Lender to be applied to the sum funding of (i) the outstanding Initial Term Loans held by such Lender, plus Lender in accordance with Section 2.02 upon the Administrative Agent’s determination (ii) the outstanding Incremental Term Loans held by such Lender, made in each case after giving effect accordance with and subject to the prepayments contemplated by Section 1.09A hereof;
(ii) for the account of each Lender making Tranche D Term Loans, an upfront fee equal to 1.5% based on each Lender's final allocation of the Tranche D Term Loans, and
(iii) for their own account, of all fees and expenses owing by the Borrower to the Successor Agent and/or Banc of America Securities LLC ("BAS"), including, without limitation, the fees and expenses of Moore & Van Allen PLLC, counsel for the Successor Xxxxx anx XXX.
(e) The Successor Agent shall have received copies of certificates of insurance of the Borrower and its Subsidiaries evidencing insurance coverage and policy provisions meeting the requirements set forth in Section 6.02 hereof and naming the Successor Agent as additional insured or loss payee, as the case may be, on behalf of the Lenders.
(f) The Successor Agent shall have received satisfactory evidence that the Borrower shall have delivered to the Term Loan Agent (as defined in the Parent Term Loan Agreement) a certificate of an Authorized Officer of the Borrower certifying that the Indebtedness represented by the Tranche D Term Loans is permitted to be incurred under Section 7.01(b)(ii) of the Parent Term Loan Agreement and qualifies as "Permitted Indebtedness" as defined in the Parent Term Loan Agreement, together with a copy terms of this Agreement) that it has received all items expressly required to be delivered to it under this Section 4.01.
(g) The representations and warranties of the Borrower contained in Article IV hereof shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date.
(h) The Resignation and Assignment Agreement shall have become effective in accordance with the terms thereof.
Appears in 1 contract
Conditions to this Agreement. This Agreement shall be and become effective as The obligation of the date hereof (the "Fourth Amendment Effective Date") when all L/C Issuer and each Lender to enter into this Agreement is subject to satisfaction of the following conditions set forth in this Section 3.01 shall have been satisfied (as determined by precedent on or prior to the Successor Agent):Closing Date:
(a) The Successor Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent shall have received counterparts ofand each of the Lenders:
(i) executed counterparts of this Agreement, duly executed on behalf of sufficient in number for distribution to the Administrative Agent, each of the Borrower Lender and the Required Lenders and the Tranche D Term Loan LendersCompany;
(ii) the Joinder, Acknowledgement and Consent of Guarantors and Reaffirmation of Guaranty attached hereto as Schedule 3.01(a)(ii) (the "Joinder"), duly executed on behalf of the Parent and each Subsidiary of the Borrower that is a party to the Subsidiary Agreement;
(iii) the Resignation and Assignment Agreement, duly executed on behalf copies of each of the Resigning Security Documents, sufficient in number for distribution to the Administrative Agent, the Successor Agent each Lender and the Borrower;
(iv) a certificate in the form of Schedule 3.01(a)(iv) attached hereto, duly executed on behalf of the Borrower;
(v) a certificate in the form of Schedule 3.01(a)(v) attached hereto, duly executed on behalf of the Borrower; and
(vi) the Agent Fee Letter, duly executed on behalf of the Borrower.
(b) The Successor Agent shall have received the following items for each of the Parent, the Borrower and each other Subsidiary party to the Subsidiary Agreement, in each case dated the Fourth Amendment Effective Date unless otherwise indicated:
(i) copies of the articles or certificates of incorporation or other charter documents of such Person certified to be true, complete and correct as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation and/or certified by a secretary or assistant secretary of such Person to be true, complete and correct as of the Fourth Amendment Effective Date;
(ii) a copy of the bylaws, partnership or operating agreement of such Person, as applicable, certified by a secretary or assistant secretary of such Person to be true and correct as of the Fourth Amendment Effective DateCompany;
(iii) resolutions of its Board of Directors or other authorizing body or Person approving 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 authorizing capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the execution, delivery and performance of this Agreement, certified as of the Fourth Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendmentother Loan Documents to which such Loan Party is a party;
(iv) certificates of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing issued as of a reasonably recent date to the Fourth Amendment Effective Date by extent applicable 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 Person's state of organization or formation.qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) signature and incumbency certificates of the officers of such Person executing this Agreement, any amendments to Security Documents and any other documents evidence that all insurance required to be delivered under subsection maintained by the Loan Parties pursuant to the Loan Documents has been obtained and is in effect;
(avi) with respect to each Dutch Loan Party, an up to date extract from the Dutch Commercial Register (Handelsregister), of its deed of incorporation, its articles of association and an up to date copy of its shareholders register;
(vii) opinions of (A) Xxxx Xxxxxxxxx & Xxxx, PLLC, United States counsel to the Loan Parties, and (B) Rassers Advocaten, The Netherlands counsel to the Loan Parties, each addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and this Agreement as the Administrative Agent may reasonably request;
(viii) the results of Uniform Commercial Code searches and other evidence satisfactory to the Administrative Agent that there are no Liens upon the Collateral, other than Liens permitted pursuant to Section 3.01 7.01 and otherwise in form and substance satisfactory to the Administrative Agent; and
(collectivelyix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the "Additional L/C Issuer or the Required Lenders reasonably may require.
(b) Administrative Agent shall be satisfied that the Security Documents shall be effective to create in favor of the Administrative Agent a legal, valid and enforceable first (except for Liens permitted pursuant to Section 7.01 and entitled to priority under applicable law) security interest in and Lien upon the Collateral, along with, in form and substance satisfactory to the Lenders, evidence that all filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected;
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Syndication Agent, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings;
(d) No event that has a Material Adverse Effect shall have occurred and be continuing;
(e) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of any Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(f) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents";
(g) Payoff letters in form satisfactory to the Administrative Agent, indicating that upon funding the initial advance of the Loans, all existing senior or subordinated credit facilities of the Borrowers will be repaid in full, all Liens in connection therewith will be terminated, and all prior credit commitments shall have been terminated;
(h) The Administrative Agent shall have received from each of the Loan Parties documentation and other information required by regulatory authorities under applicable “Know Your Customer” and Anti-Money Laundering Laws, as defined in Section 5.26(iii); and
(ci) The Successor All fees required to be paid to the Lenders on or before the Closing Date pursuant to the Fee Letter shall have been paid. Without limiting the generality of the provisions of the last paragraph of Section 9.03, (i) for purposes of determining compliance with the conditions specified in this Section, each Lender 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 Lender unless the Administrative Agent shall have received have received an originally executed copy of a written opinion of Drinker Biddle & Reath LLP, counsel for the Parent and the Companies, dated xx xx the Xxxxth Amendment Effective Date, addressed notice from such Lender prior to the Agent and the Lenders and in form and substance reasonably satisfactory to the Successor Agent.
(d) The Successor Agent shall have received payment from the Borrower, in Dollars and in immediately available funds, of the following:
(i) for the benefit of each Lender that shall have delivered both (i) an executed non-binding consent letter to BAS on or prior to 5:00 p.m. (New York time) on October 17, 2003 proposed Closing Date specifying its objection thereto and (ii) an executed counterpart in the event that Advance Funding Arrangements shall exist, the delivery by the Lender (x) of funds pursuant to such Advance Funding Arrangements (“Advance Funds”) and (y) its signature page to this Agreement shall constitute the request, consent and direction by such Lender to the Administrative Agent on or (unless expressly revoked by written notice from such Lender received by the Administrative Agent prior to 5:00 p.m. (New York timethe earlier to occur of funding or the Administrative Agent’s declaration that this Agreement is effective) on October 21, 2003, an amendment fee equal to 25 basis points withdraw and release to the Borrowers on the amount equal Closing Date the applicable funds of such Lender to be applied to the sum funding of (i) the outstanding Initial Term Loans held by such Lender, plus Lender in accordance with Section 2.02 upon the Administrative Agent’s determination (ii) the outstanding Incremental Term Loans held by such Lender, made in each case after giving effect accordance with and subject to the prepayments contemplated by Section 1.09A hereof;
(ii) for the account of each Lender making Tranche D Term Loans, an upfront fee equal to 1.5% based on each Lender's final allocation of the Tranche D Term Loans, and
(iii) for their own account, of all fees and expenses owing by the Borrower to the Successor Agent and/or Banc of America Securities LLC ("BAS"), including, without limitation, the fees and expenses of Moore & Van Allen PLLC, counsel for the Successor Xxxxx anx XXX.
(e) The Successor Agent shall have received copies of certificates of insurance of the Borrower and its Subsidiaries evidencing insurance coverage and policy provisions meeting the requirements set forth in Section 6.02 hereof and naming the Successor Agent as additional insured or loss payee, as the case may be, on behalf of the Lenders.
(f) The Successor Agent shall have received satisfactory evidence that the Borrower shall have delivered to the Term Loan Agent (as defined in the Parent Term Loan Agreement) a certificate of an Authorized Officer of the Borrower certifying that the Indebtedness represented by the Tranche D Term Loans is permitted to be incurred under Section 7.01(b)(ii) of the Parent Term Loan Agreement and qualifies as "Permitted Indebtedness" as defined in the Parent Term Loan Agreement, together with a copy terms of this Agreement) that it has received all items expressly required to be delivered to it under this Section 4.01.
(g) The representations and warranties of the Borrower contained in Article IV hereof shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date.
(h) The Resignation and Assignment Agreement shall have become effective in accordance with the terms thereof.
Appears in 1 contract
Conditions to this Agreement. This Agreement shall be and become effective as The obligation of the date hereof (the "Fourth Amendment Effective Date") when all L/C Issuer and each Lender to enter into this Agreement is subject to satisfaction of the following conditions set forth in this Section 3.01 shall have been satisfied (as determined by precedent on or prior to the Successor Agent):Closing Date:
(a) The Successor Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent shall have received counterparts ofand each of the Lenders:
(i) executed counterparts of this Agreement, duly executed on behalf of sufficient in number for distribution to the Administrative Agent, each of the Borrower Lender and the Required Lenders and the Tranche D Term Loan LendersCompany;
(ii) resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the JoinderAdministrative Agent may require evidencing the identity, Acknowledgement authority and Consent capacity of Guarantors each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and Reaffirmation of Guaranty attached hereto as Schedule 3.01(a)(ii) (the "Joinder"), duly executed on behalf of the Parent and each Subsidiary of the Borrower that other Loan Documents to which such Loan Party is a party to the Subsidiary Agreementparty;
(iii) such documents and certifications as the Resignation Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and Assignment Agreementthat each Loan Party is validly existing, duly executed on behalf in good standing to the extent applicable and qualified to engage in business in each jurisdiction where its ownership, lease or operation of each properties or the conduct of its business requires such qualification, except to the Resigning Agent, the Successor Agent and the Borrowerextent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) a certificate evidence that all insurance required to be maintained by the Loan Parties pursuant to the Loan Documents has been obtained and is in the form of Schedule 3.01(a)(iv) attached hereto, duly executed on behalf of the Borrower;effect; and
(v) a certificate in such other assurances, certificates, documents, consents or opinions as the form of Schedule 3.01(a)(v) attached heretoAdministrative Agent, duly executed on behalf of the Borrower; and
(vi) L/C Issuer or the Agent Fee Letter, duly executed on behalf of the BorrowerRequired Lenders reasonably may require.
(b) The Successor Agent shall have received Receipt by the following items for each Lenders of the Parent, the Borrower and each other Subsidiary party evidence satisfactory to the Subsidiary Agreement, in each case dated the Fourth Amendment Effective Date unless otherwise indicated:
(i) copies of the articles or certificates of incorporation or other charter documents of such Person certified to be true, complete and correct as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation and/or certified by a secretary or assistant secretary of such Person to be true, complete and correct as of the Fourth Amendment Effective Date;
(ii) a copy of the bylaws, partnership or operating agreement of such Person, as applicable, certified by a secretary or assistant secretary of such Person to be true and correct as of the Fourth Amendment Effective Date;
(iii) resolutions of its Board of Directors or other authorizing body or Person approving and authorizing the execution, delivery and performance of this Agreement, certified as of the Fourth Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment;
(iv) certificates of good standing issued as of a reasonably recent date to the Fourth Amendment Effective Date by such Person's state of organization or formation.
(v) signature and incumbency certificates of the officers of such Person executing this Agreement, any amendments to Security Documents and any other documents required to be delivered under subsection (a) of this Section 3.01 (collectively, the "Additional Documents"); and
(c) The Successor Agent shall have received have received an originally executed copy of a written opinion of Drinker Biddle & Reath LLP, counsel for the Parent and the Companies, dated xx xx the Xxxxth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and that there have been no amendments to the Senior Subordinated Note Documents, except as permitted pursuant to the Subordination Agreement;
(c) Administrative Agent shall be satisfied that the Security Documents shall be effective to create in favor of the Administrative Agent a legal, valid and enforceable first (except for Liens permitted pursuant to Section 7.01 and entitled to priority under applicable law) security interest in and Lien upon the Collateral, along with, in form and substance reasonably satisfactory to the Successor Agent.Lenders, evidence that all filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected;
(d) The Successor Agent Unless waived by the Administrative Agent, the Company shall have received payment from the Borrowerpaid all fees, in Dollars charges and in immediately available funds, disbursements of the following:
(i) for the benefit of each Lender that shall have delivered both (i) an executed non-binding consent letter to BAS on or prior to 5:00 p.m. (New York time) on October 17, 2003 and (ii) an executed counterpart of this Agreement counsel to the Administrative Agent on or prior to 5:00 p.m. (New York time) on October 21, 2003, an amendment fee equal to 25 basis points on and the amount equal to the sum of (i) the outstanding Initial Term Loans held by such LenderSyndication Agent, plus (ii) such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the outstanding Incremental Term Loans held by such Lender, in each case after giving effect to the prepayments contemplated by Section 1.09A hereofclosing proceedings;
(ii) for the account of each Lender making Tranche D Term Loans, an upfront fee equal to 1.5% based on each Lender's final allocation of the Tranche D Term Loans, and
(iii) for their own account, of all fees and expenses owing by the Borrower to the Successor Agent and/or Banc of America Securities LLC ("BAS"), including, without limitation, the fees and expenses of Moore & Van Allen PLLC, counsel for the Successor Xxxxx anx XXX.
(e) The Successor Agent No Material Adverse Effect shall have received copies of certificates of insurance of the Borrower occurred and its Subsidiaries evidencing insurance coverage and policy provisions meeting the requirements set forth in Section 6.02 hereof and naming the Successor Agent as additional insured or loss payee, as the case may be, on behalf of the Lenders.be continuing;
(f) The Successor absence of any action, suit, investigation or proceeding pending or, to the knowledge of any Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect; and
(g) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents. Without limiting the generality of the provisions of the last paragraph of Section 9.03, (i) for purposes of determining compliance with the conditions specified in this Section, each Lender 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 Lender unless the Administrative Agent shall have received satisfactory evidence that the Borrower shall have delivered notice from such Lender prior to the Term Loan proposed Closing Date specifying its objection thereto and (ii) in the event that Advance Funding Arrangements shall exist, the delivery by the Lender (x) of funds pursuant to such Advance Funding Arrangements (“Advance Funds”) and (y) its signature page to this Agreement shall constitute the request, consent and direction by such Lender to the Administrative Agent (as defined in the Parent Term Loan Agreement) a certificate of an Authorized Officer of the Borrower certifying that the Indebtedness represented unless expressly revoked by written notice from such Lender received by the Tranche D Term Loans Administrative Agent prior to the earlier to occur of funding or the Administrative Agent’s declaration that this Agreement is permitted effective) to withdraw and release to the Borrowers on the Closing Date the applicable funds of such Lender to be incurred under applied to the funding of Loans by such Lender in accordance with Section 7.01(b)(ii) of 2.03 upon the Parent Term Loan Agreement Administrative Agent’s determination (made in accordance with and qualifies as "Permitted Indebtedness" as defined in subject to the Parent Term Loan Agreement, together with a copy terms of this Agreement) that it has received all items expressly required to be delivered to it under this Section 4.01.
(g) The representations and warranties of the Borrower contained in Article IV hereof shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date.
(h) The Resignation and Assignment Agreement shall have become effective in accordance with the terms thereof.
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