Effectiveness of this Agreement This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Effectiveness of this Amendment The following shall have occurred before this Amendment is effective:
Conditions to Effectiveness of this Agreement This Agreement shall become effective on and as of the date hereof (the “Incremental Facility Closing Date”), upon satisfaction of only the following conditions:
(a) The Administrative Agent and the Incremental Term Lender shall have received from the Borrower, Holdings, each Subsidiary Guarantor, the Administrative Agent, the Collateral Agent and the Incremental Term Lender either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent and the Incremental Term Lender (which may include telecopy or other electronic transmission (including “pdf”) of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent and the Incremental Term Lender shall have received, on behalf of such parties and the Lenders, an opinion of Xxxxxx & Bird LLP, as special counsel for the Loan Parties and Xxxx Plant Xxxxx, as Minnesota special counsel for the Loan Parties, each dated as of the Incremental Facility Closing Date and addressed to the Administrative Agent, the Incremental Term Lender and the Lenders, and of such other counsel to the Loan Parties satisfactory to the Administrative Agent and the Incremental Term Lender, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Incremental Term Lender.
(c) The Administrative Agent shall have received: (i) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or similar Governmental Authority of the state of its incorporation or organization and (ii) an Officer’s Certificate of the Secretary or Assistant Secretary of each Loan Party dated the Incremental Facility Closing Date and certifying (A) that attached thereto are copies of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, (B) that attached thereto are the true and complete copy of the bylaws or operating (or limited liability company) agreement of such Loan Party as in effect on the Incremental Facility Closing Date, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Governing Board of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party 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, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(d) The Administrative Agent shall have received an Officer’s Certificate, dated the Incremental Facility Closing Date and signed by a Financial Officer of the Borrower, certifying compliance with the conditions precedent set forth in Sections 3(f), (g), (i) and (j) hereof (and, in the case of clause (i), attaching calculations demonstrating such compliance).
(e) The Incremental Term Lender shall have received (i) all fees due and payable on the Incremental Facility Closing Date pursuant to any agreement relating to the arrangement of the Incremental Term Loan Commitments and (ii) to the extent invoiced at least two Business Days prior to the Incremental Facility Closing Date, all costs and expenses due and payable (whether pursuant to the Loan Documents or any agreement relating to the arrangement of the Incremental Term Loan Commitments) on or prior to the Incremental Facility Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out of pocket costs and expenses (including, without limitation, reasonable fees, charges and disbursements of Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(f) The representations and warranties of each Loan Party set forth in Section 5 of this Agreement and in each other Loan Document shall be true and correct in all material respects on and as of the Incremental Facility Closing Date with the 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 or period, in which case they shall be true and correct in all material respects as of such earlier date or period; provided 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 the Incremental Facility Closing Date or on such earlier date, as the case may be.
(g) No Default or Event of Default shall exist or would immediately result from the extension of the Incremental Term Loans or from the application of the proceeds therefrom.
(h) The Borrower shall have delivered or caused to be delivered to the Administrative Agent and the Incremental Term Lender a solvency certificate from the Chief Financial Officer of Holdings setting forth the conclusions that, after giving effect to the transactions contemplated hereby, Holdings and its Subsidiaries (on a consolidated basis) are Solvent.
(i) The incurrence of the Incremental Term Loans and the application of proceeds thereof (and assuming the Incremental Term Loans are fully drawn) complies with the requirements set forth in Section 2.22(a) of the Credit Agreement.
(j) The Borrower shall have given notice of the prepayment of the outstanding “Revolving Loans” under and as defined in the Revolving Credit Agreement in accordance with Section 2.12(b) of the Revolving Credit Agreement, and substantially contemporaneously with the funding of the Incremental Term Loans, shall have made such prepayment of such Revolving Loans.
(k) The Administrative Agent and the Incremental Term Lender shall have received prior to the Incremental Facility Closing Date, to the extent requested from the Borrower in writing by the Administrative Agent at least 2 Business Days prior the Incremental Facility Closing 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 that has been requested by the Administrative Agent prior to the Incremental Facility Closing Date.
Effectiveness of Contract This Contract shall come into effect on the date the Contract is signed by both parties or such other later date as maybe stated in the SCC.
Conditions to Effectiveness of this Amendment This Amendment shall --------------------------------------------- become effective when the Agent shall have received at least thirteen (13) counterparts of this Amendment, duly executed by the Company and the Required Lenders, provided the following conditions are satisfied:
(a) Before and after giving effect to this Amendment, the representations and warranties of the Company in Section 3 of the Credit Agreement, Section 5 of the Pledge and Security Agreement and Section 4 of the Servicing Security Agreement, of NCFC in Section 15 of the Guaranty, and of NCCC in Section 15 of the NCCC Guaranty shall be true and correct as though made on the date hereof, except for changes that are permitted by the terms of the Credit Agreement.
(b) Before and after giving effect to this Amendment, no Event of Default and no Unmatured Event of Default shall have occurred and be continuing.
(c) No material adverse change in the business, assets, financial condition or prospects of the Company or NCFC shall have occurred since May 26, 1999.
(d) The Agent shall have received the following, each duly executed or certified, as the case may be, and dated as of the date of delivery thereof:
(i) copy of resolutions of the Board of Directors of the Company, certified by its respective Secretary or Assistant Secretary, authorizing or ratifying the execution, delivery and performance of this Amendment;
(ii) a certified copy of any amendment or restatement of the Articles of Incorporation or the By-laws of the Company made or entered following the date of the most recent certified copies thereof furnished to the Lenders;
(iii) certified copies of all documents evidencing any necessary corporate action, consent or governmental or regulatory approval (if any) with respect to this Amendment;
(iv) a Reaffirmation of NCFC Guaranty duly executed by NCFC;
(v) a Reaffirmation of NCCC Guaranty duly executed by NCCC; and
(vi) such other documents, instruments, opinions and approvals as the Agent may reasonably request.
(e) The Agent shall have received the amendment fee required by Section 8.16 of the Credit Agreement.
Effectiveness of Agreement This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Effectiveness of the Agreement This Agreement shall become effective when both the Company and the Representative have executed the same and delivered counterparts of such signatures to the other party.
Effectiveness of Incremental Amendment The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Conditions Precedent to the Effectiveness of this Amendment This Amendment shall become effective as of the date first written above when, and only when, each of the following conditions precedent shall have been satisfied or waived (the “Amendment No. 1 Effective Date”) by the Administrative Agent:
Conditions Precedent to the Effectiveness of this Agreement The effectiveness of this Agreement is subject to the satisfaction (or substantially simultaneous satisfaction) of the following conditions precedent:
(a) The Agent shall have received all fees and expenses (including, but not limited to, reasonable fees and expenses of counsel to the Agent) required to be paid on the Closing Date, pursuant to the terms of this Agreement and each Fee Letter and the Annex thereto.
(b) The Agent shall have received on or before the Closing Date, the following, each (unless otherwise indicated) dated as of the Closing Date (unless otherwise specified), in form and substance reasonably satisfactory to the Agent:
(i) This Agreement, duly executed and delivered by the Seller and the Servicer;
(ii) The Receivables Sale Agreement, duly executed by the Seller and each Originator, together with:
(A) Proper financing statements naming each Originator as debtor, the Seller as secured party and the Agent, as assignee, to be filed under the UCC of all jurisdictions that the Agent may deem necessary in order to perfect the Seller’s interests created or purported to be created by the Receivables Sale Agreement;
(B) Proper financing statement terminations or releases, if any, necessary to release all security interests and other rights of any Person in the Receivables, Related Security, Collections or Contracts previously granted by any Originator;
(C) The Consent and Agreement, duly executed by the Seller and each Originator; and
(D) A Subordinated Note, in substantially the form of Exhibit B to the Receivables Sale Agreement, payable to the order of each Originator, and duly executed by the Seller;
(iii) The Equistar Undertaking, duly executed and delivered by Equistar;
(iv) (x) A Lock-Box Agreement with each Lock-Box Bank, executed by such Lock-Box Bank, the Agent and the Seller, the Servicer or an Originator, as applicable, and (y) a control agreement, in form and substance reasonably satisfactory to the Agent, with each depository bank maintaining any other Restricted Account, executed by such depository bank, the Agent, the Seller and the Servicer, as applicable;
(v) The Intercreditor Agreement duly executed by each party thereto;
(vi) Good standing certificates (or equivalent) issued by the Secretary of State of the jurisdiction of incorporation of each Transaction Party;
(vii) A copy of the articles or certificate of incorporation (or equivalent Constituent Document) of each Transaction Party, certified as of a recent date by the Secretary of State (or equivalent body) of the state of organization of such Transaction Party;
(viii) A certificate of the Secretary or an Assistant Secretary of each Transaction Party certifying (A) the names and true signatures of each officer of such Transaction Party that has been authorized to execute and deliver any Transaction Document or other document required hereunder to be executed and delivered by or on behalf of such Transaction Party, (B) the by-laws (or equivalent Constituent Document) of such Transaction Party as in effect on the date of such certification, (C) the resolutions of such Transaction Party’s Board of Directors (or equivalent governing body) approving and authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party and (D) that there have been no changes in the certificate of incorporation (or equivalent Constituent Document) of such Transaction Party from the certificate of incorporation (or equivalent Constituent Document) delivered pursuant to clause (vii) above;
(ix) A certificate of a Principal Financial Officer of each Transaction Party certifying that the conditions set forth in Sections 3.1(a), (b), (c), (e), (f) and (h) have been satisfied;
(x) A certificate of a Principal Financial Officer of each of the Seller and Originators stating that such Transaction Party is Solvent after giving effect to the transactions contemplated hereunder and under the other Transaction Documents;
(xi) Proper financing statements naming the Seller, as debtor, and the Agent, as secured party, to be filed under the UCC of all jurisdictions that the Agent may deem necessary in order to perfect the ownership interests created or purported to be created by the Transactions Documents;
(xii) Proper financing statement terminations or releases, if any, necessary to release all security interests and other rights of any Person in the Pool Receivables, Contracts, Related Security or Collections previously granted by the Seller or any Originator; and
(xiii) Favorable opinions of (A) Xxxxxx X. X’Xxxxx, General Counsel of Equistar, in substantially the form of Exhibit I-2 hereto and as to such other matters as the Agent may reasonably request, (B) Xxxxx Xxxxx L.L.P., counsel to the Transaction Parties, in substantially the forms of Exhibit I-1 and I-3 hereto as to such other matters as the Agent may reasonably request, including without limitation (1) a “true sale” opinion with respect to the sale of Receivable Assets under and as defined in the Receivables Sale Agreement from each Originator to the Seller, (2) an opinion with respect to the non-substantive consolidation of the Seller with each other Transaction Party or any of its Affiliates in a case under the U.S. Bankruptcy Code, and (3) an opinion relating to the enforceability of the Transaction Documents, compliance with all laws and regulations (including Regulation U of the Board), the perfection of all ownership and other interests purported to be granted under the Transaction Documents, and no conflicts with material agreements, and (C) special counsel to the Agent, as the Agent may reasonably request.
(c) Each of the Seller, the Originators and the Servicer shall have received all necessary governmental and third party consents and approvals necessary in connection with Transaction Documents and the transactions contemplated thereby (without the imposition of any conditions that are not reasonably acceptable to the Purchasers) and shall remain in effect, and all applicable governmental filings (except for the UCC financing statements referred to in this Section 3.1) shall have been made and all applicable waiting periods shall have expired without in either case any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Purchasers that restrains, prevents or imposes materially adverse conditions upon the Transaction Documents or the transactions contemplated thereby.
(d) The Purchasers shall have received and be satisfied with (i) audited financial statements of Equistar and its Consolidated Subsidiaries for the Fiscal Year ending December 31, 2002 by independent nationally-recognized public accountants which statements shall be unqualified, (ii) interim unaudited quarterly financial statements of Equistar and its Consolidated Subsidiaries, through the fiscal quarter ending September 30, 2003, and (iii) the financial projections of Equistar and its Consolidated Subsidiaries covering the Fiscal Years ending in 2003 through 2007, inclusive, that are included in the Confidential Information Memorandum.
(i) All obligations for outstanding capital, accrued and unpaid yield and fees and other amounts then due and payable under the Existing Program shall have been concurrently satisfied, (ii) all documentation relating to the Existing Program shall have been concurrently terminated on terms satisfactory to the Agent and (iii) the Agent shall have received evidence of such termination in form and substance satisfactory to the Agent.
(f) The ABF Agreement shall be in full force and effect and no default shall exist thereunder.
(g) The Agent shall be satisfied with the results of a field examination of the Originators conducted by CUSA’s internal auditors no more than 3 months prior to the Closing Date.
(h) Total Excess Availability (after giving effect to the effectiveness of this Agreement and the ABF Agreement) shall be at least $300,000,000 on the Closing Date. The Agent shall promptly notify the Seller, the Servicer and the Purchasers of the Closing Date, and such notice shall be conclusive and binding on all parties hereto.
