Term and Effectiveness This Agreement shall become effective as of the first date written above. Once effective, this Agreement shall remain in effect for two years, and thereafter shall continue automatically for successive one-year periods; provided that such continuance is specifically approved at least annually by: (i) the vote of the Board of Directors, or by the vote of a majority of the outstanding voting securities of the Company and (ii) the vote of a majority of the Independent Directors, in accordance with the requirements of the 1940 Act.
Filing and Effectiveness The Company shall file a Registration Statement relating to any Demand Registration as promptly as practicable, but in any event no later than sixty (60) days after receipt of a Demand Notice, with the SEC and use its reasonable best efforts to cause such Registration Statement to be declared effective as soon as practicable thereafter and to remain effective for a period of time reasonably required for the disposition of the Registrable Securities covered by such Registration Statement. If any Demand Registration is requested to be effected as a shelf registration pursuant to Rule 415 under the Securities Act by the Holders demanding such Demand Registration, the Company shall keep the Registration Statement filed in respect thereof effective for a period of six (6) months from the date on which the SEC declares such Registration Statement effective or such shorter period that will terminate when all Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement. The Company shall promptly, and in any event within ten (10) Business Days after receipt of a Demand Notice, notify all other Holders in writing of the receipt of such Demand Notice and each such other Holder shall have the right to have all or a part of such Holder’s Registrable Securities included in such registration thereof by delivering a written notice (a “Participating Notice”) to the Company within ten (10) Business Days after receipt of the aforementioned notice from the Company (each Holder that delivers a Participating Notice to the Company pursuant to this Section 3(b), a “Participating Demand Holder”). Each Participating Demand Holder shall specify in the Participating Notice the number of Registrable Securities that such Participating Demand Holder elects to include in such registration and the Company shall include in such registration all Registrable Securities requested by the Participating Demand Holders for inclusion as specified in the Participation Notices.
Continued Effectiveness The Company shall use its reasonable best efforts to keep such Shelf Registration Statement continuously effective under the Securities Act in order to permit the Prospectus forming part of the Shelf Registration Statement to be usable by Holders until the earlier of: (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder); and (ii) the date as of which no Holder holds Registrable Securities (such period of effectiveness, the “Shelf Period”). Subject to Section 3.2.4, the Company shall be deemed not to have used its reasonable best efforts to keep the Shelf Registration Statement effective during the Shelf Period if the Company voluntarily takes any action or omits to take any action that would result in Holders of the Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to such Shelf Registration Statement during the Shelf Period, unless such action or omission is required by applicable law.
Term and Effective Date The Master Contract became effective March 22, 2023, and its term currently ends on August 31, 2027. The Master Contract has five years of renewals available. The Contract will become effective on April 1, 2023, or on the date signed by all Parties, whichever is later. The Contract will expire on August 31, 2027, unless terminated earlier or renewed in accordance with Exhibit B, Special Contract Conditions.
Counterparts and Effectiveness This Agreement may be executed in several counterparts, which shall be treated as originals for all purposes, and all so executed shall constitute one agreement, binding on all of the parties hereto, notwithstanding that all the parties are not signatory to the original or the same counterpart. Any such counterpart shall be admissible into evidence as an original hereof against each Person who executed it. The execution of this Agreement and delivery thereof by facsimile shall be sufficient for all purposes, and shall be binding upon any party who so executes.
Conditions of Effectiveness This Amendment shall become effective as of the date first above written when, and only when, each of the following conditions has been fulfilled:
(a) The Agent shall have received (i) counterparts of this Amendment duly executed by the Borrower, the Bank, the Agent and the Issuing Bank, and (ii) the following, each dated the date hereof (except otherwise specified below), in form and substance satisfactory to the Agent and each Bank (except where otherwise specified below) and in sufficient quantity for each party to have a fully executed original:
(A) the consent of AES, substantially in the form of Exhibit A hereto, duly executed by an authorized officer of AES;
(B) certified copies of the resolutions of the Board of Directors (or comparable governing body) of AES NY authorizing the Borrower to enter into this Amendment, and of all documents evidencing other necessary action (partnership, limited liability company or otherwise) and Governmental Approvals, if any, with respect to this Amendment;
(C) a certificate of AES NY certifying the names, true signatures and incumbency of the officers of AES NY authorized to sign this Amendment and the other documents to be delivered hereunder;
(D) copies of the certificate of limited partnership, partnership agreement, certificate of formation and limited liability company agreement, as applicable, of the Borrower and AES NY, together with all amendments thereto, in each case certified in a manner satisfactory to the Agent;
(E) good standing certificates in respect of the Borrower and AES NY from its jurisdiction of organization and each jurisdiction in which it is qualified to do business as partnership or limited liability company, as the case may be, in each case dated no earlier than 10 days prior to the date hereof;
(F) a favorable opinion of Xxxxxxxxxx & Xxxxx LLP, special New York counsel to the Borrower and AES NY, in substantially the form of Exhibit B hereto; and
(G) such other approvals, certificates, opinions and documents as the Agent may reasonably request.
(b) The following statements shall be true and the Agent shall have received a certificate of the Borrower, dated the date hereof and in sufficient copies for each Bank, stating that:
(i) each Loan Document Representation and Warranty is true and correct on and as of the date hereof, before and after giving effect to this Amendment, as though made on and as of such date (with each reference in the Loan Documents to the Existing Agreement being deemed to be a reference to this Amendment and the Amended Agreement), and
(ii) no Default has occurred and is continuing, both before and after giving effect to the transactions contemplated by this Amendment.
(c) The following statement shall be true and the Agent shall have received a certificate of AES, dated the date hereof and in sufficient copies for each Bank, stating that: the representations and warranties set forth in Section 5 of the Guaranty are true and correct on and as of the date hereof with the same effect as though made on and as of such date.
(d) All fees payable on or prior to the date hereof pursuant to the letter agreement, dated April 16, 2003, between the Agent and the Borrower, and all amounts payable pursuant to Section 11.02 of the Existing Agreement for which invoices have been delivered to the Borrower on or prior to the date hereof, shall have been paid in full or arrangements satisfactory to the Agent shall have been made to cause them to be paid in full on such date.
(e) All Governmental Approvals necessary in connection with this Amendment and the transactions contemplated hereby shall have been obtained and be in full force and effect. All third party approvals necessary or, in the judgment of the Agent, advisable in connection with this Amendment and the transactions contemplated hereby shall have been obtained and be in full force and effect. All such Governmental Approvals and third party approvals, if any, shall be in form and substance satisfactory to the Agent.
Continuing Effectiveness As hereby amended, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. After the effectiveness hereof, all references in the Credit Agreement or other Loan Documents to the “Agreement”, the “Credit Agreement” or similar terms shall refer to the Credit Agreement as amended hereby. This Amendment is a Loan Document.
Conditions to Effectiveness This Amendment shall become effective upon the date (the “First Amendment Effective Date”) on which the Administrative Agent shall have received:
(a) this Amendment, executed and delivered by a duly authorized officer of the Borrower;
(b) written consents to the execution of this Amendment (“Lender Consent Letters”) from Lenders constituting the Required Lenders;
(c) a Tranche C Lender Addendum executed and delivered by each Tranche C Term Loan Lender and accepted by the Borrower;
(d) an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party other than the Borrower (such Acknowledgements and Consents, together with this Amendment, the “Amendment Documents”);
(e) a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the First Amendment Effective Date) of Lxxxxx & Wxxxxxx, counsel to the Borrower and its Subsidiaries, covering such matters relating to the Loan Parties, the Loan Documents and this Amendment as the Administrative Agent shall reasonably request;
(f) all fees required to be paid, and all reasonable out-of-pocket expenses of the Administrative Agent for which invoices have been presented (including reasonable fees, disbursements and other charges of counsel to the Agents), on or before the First Amendment Effective Date; and
(g) subject to Section 9 hereof, satisfactory evidence that the outstanding principal amount of, and all accrued and unpaid interest on, the Tranche B Term Loans shall have been paid in full (in the case of the principal amount thereof, with the proceeds of the Tranche C Term Loans). The Administrative Agent shall notify the Borrower and the Lenders of the First Amendment Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Amendment shall not become effective unless each of the foregoing conditions is satisfied at or prior to 5:00 p.m., New York City time, on December 31, 2003.
Amendment Effectiveness Sections 1.02 and 1.03 of this Amendment shall become effective as of the first date (the “First Incremental Term Facility Amendment Effective Date”) on which the following conditions have been satisfied or waived:
(a) The Administrative Agent and KKR Capital Markets LLC (the “Arranger”) (or their counsel) shall have received from (i) the Borrower, (ii) Holdings, (iii) the First Additional Term B Lender party hereto and (iv) the Administrative Agent, either (x) counterparts of this Amendment signed on behalf of such parties or (y) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Amendment.
(b) The obligation of the First Additional Term B Lender party hereto to make First Additional Term Loans on the First Incremental Term Facility Amendment Effective Date is subject to the satisfaction of the following conditions:
(i) Immediately before and after giving effect to the borrowing of the First Additional Term Loans, the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the First Incremental Term Facility Amendment Effective Date.
(ii) The Administrative Agent and the First Additional Term B Lender party hereto shall have received a certificate of a Responsible Officer of the Borrower dated the First Incremental Term Facility Amendment Effective Date, certifying compliance with clause (i) above.
(iii) The Administrative Agent and the Arranger shall have received a written opinion (addressed to the Administrative Agent and the First Additional Term B Lender party hereto and dated the First Incremental Term Facility Amendment Effective Date) of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York and Delaware counsel for the Loan Parties and (ii) Xxxxx Xxxx Xxxxxxxxxx Xxxxxxxx LLP, special Nevada counsel for the Loan Parties. The Borrower hereby requests each such counsel to deliver such opinion.
(iv) The Administrative Agent and the Arranger shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority (or a representation that such Organizational Documents have not been amended since the Effective Date), (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party (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 Effective Date), (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Amendment, certified as of the First Incremental Term Facility Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(v) The Administrative Agent shall have received a Borrowing Request in a form reasonably acceptable to the Administrative Agent requesting that the First Additional Term B Lender make the First Additional Term Loans to the Borrower on the First Incremental Term Facility Amendment Effective Date.
(vi) Each Loan Party shall have entered into the First Incremental Term Facility Amendment Reaffirmation Agreement.
(vii) The Administrative Agent and the Arranger shall have received all documentation at least three Business Days prior to the First Incremental Term Facility 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 First Incremental Term Facility Amendment Effective Date and that the Administrative Agents or the Arranger have 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 the USA Patriot Act.
(viii) The Administrative Agent shall have received copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent on or prior to the First Incremental Term Facility Amendment Effective Date with respect to the Loan Parties.
(c) The Administrative Agent and the Arranger shall have received, in immediately available funds, payment or reimbursement of all reasonable and documented costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable in connection with this Amendment, including, to the extent invoiced at least two Business Days prior to the First Incremental Term Facility Amendment Effective Date, the reasonable fees, charges and disbursements of counsel for the Administrative Agent and the Arranger.
(d) The Borrower shall have paid to the Arranger the fees in the amounts previously agreed in writing to be received on the First Incremental Term Facility Amendment Effective Date.
(e) The Administrative Agent shall notify the Borrower, the First Additional Term B Lender and the other Lenders of the First Incremental Term Facility Amendment Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment effected hereby shall not become effective and the obligations of the First Additional Term B Lender hereunder to make First Additional Term Loans will automatically terminate if each of the conditions set forth or referred to in Section 1.04 hereof has not been satisfied or waived at or prior to 5:00 p.m., New York City time, on April 25, 2017.
Full Force and Effect; Limited Amendment Except as expressly amended hereby, all of the representations, warranties, terms, covenants, conditions and other provisions of the Existing Credit Agreement and the Loan Documents shall remain unchanged and shall continue to be, and shall remain, in full force and effect in accordance with their respective terms. The amendments set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein and shall not be deemed to be an amendment to, waiver of, consent to or modification of any other term or provision of the Existing Credit Agreement or any other Loan Document or of any transaction or further or future action on the part of any Obligor which would require the consent of the Lenders under the Existing Credit Agreement or any of the Loan Documents.
