Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent: (i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower; (ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party; (iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction; (v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender; (vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and (vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require. (b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect. (c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid. (e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Plains Gp Holdings Lp), 364 Day Credit Agreement (Plains All American Pipeline Lp)
Amendment Effective Date. This The Amendment Effective Date and the Amendment and Restatement effected pursuant to this Agreement shall not become effective as of until the date first written above (the “Amendment Effective Date”), upon the satisfaction on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each party to this Agreement either (i) a counterpart hereof signed on behalf of such party or (ii) written evidence satisfactory to the following, each Administrative Agent (which may include telecopy transmission of which a signed signature page) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall be originals, telecopies or other electronic copies have received a favorable written opinion (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of addressed to the Borrower, if applicable, each Administrative Agent and the Lenders and dated the Amendment Effective Date (or, in the case Date) of certificates each of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this AmendmentCravath, sufficient in number for distribution Swaine & ▇▇▇▇▇ LLP, special New York counsel to the Administrative AgentBorrower and the Guarantors, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) Lic. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.▇, General Counsel for Borrowerto the Borrower and the Guarantors, and (Biii) ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇, S.C., special Mexican counsel to the Borrower and the Guarantors, substantially in the form of Exhibits ▇-▇, ▇-▇ and B-3, respectively. The Borrower requests such counsel to deliver such opinions.
(c) 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 each of (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇ L.L.P.▇▇▇▇▇▇▇, special Texas and New York counsel to Borrower, addressed to the Administrative Agent and (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇, S.C. special Mexican counsel to the Administrative Agent, substantially in the form of Exhibits C-1 and C-2, respectively, in each Lender;case covering such matters relating to the Loan Documents as the Required Lenders may reasonably request. The Borrower requests such counsel to deliver such opinions.
(vid) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) The Administrative Agent shall have received such documents and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions certificates as the Administrative Agent or its counsel may reasonably require.
request relating to (bi) All consentsthe organization, licenses existence and approvals required in connection with good standing of each Credit Party, (ii) the executionauthorization of the Borrowing hereunder (including the execution and delivery of, delivery and performance by Borrower and the validity against Borrower such Credit Party of this Amendment and its obligations under, each of the other Loan Documents Document to which it is a party shall have been obtained party) and shall be any other transactions contemplated hereby and (iii) any other legal matters relating to the Credit Parties, the Loan Documents or such other transactions, all in full force form and effectsubstance satisfactory to the Administrative Agent and its counsel.
(ce) There The Administrative Agent shall not have occurred during the period from December 31received a certificate, 2016 through and including dated the Amendment Effective Date and signed by the President, a Vice President or an Officer of the Borrower, confirming compliance with the conditions set forth in clauses (l) and (m) of this Section.
(f) The Credit Parties shall have paid all fees and other amounts due and payable to the Lender Parties on or before the Amendment Effective Date, including, to the extent invoiced, all out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent and local counsel for the Lenders) required to be reimbursed or paid by any Credit Party under the Loan Documents.
(g) The Administrative Agent shall have received (i) any event or condition that has had or could reasonably be expectedthe Accession Agreement dated as of September 24, either individually or 2004 among the Borrower, the Collateral and Intercreditor Agent, the Grantor Subsidiaries party to the Original Loan Agreement, and the Administrative Agent, as supplemented by the Accession Agreement dated as of February 24, 2005, substantially in the aggregateform attached as Exhibit D hereto, duly completed with respect to have a Material Adverse Effectthe Obligations under this Agreement and the Notes and duly executed by the Borrower, or the Collateral and Intercreditor Agent, and the Administrative Agent, on behalf of itself and the Lenders, pursuant to this Agreement (together, the “Secured Party Accession Agreement”) and (ii) any actionevidence reasonably satisfactory to it of the satisfaction of the conditions set forth in Section 7.1 the Master Collateral and Intercreditor Agreement with respect to such Obligations being treated as “Secured Obligations” thereunder.
(h) The Administrative Agent shall have received certification, suitsubstantially in the form of Exhibit F hereto, investigation, proceeding, claim or dispute pending or, as to the knowledge financial condition and solvency of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of and its Subsidiaries from the Chief Financial Officer of the Borrower.
(i) No changes or against any developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent or the Lenders regarding the Borrower and its Subsidiaries after January 31, 2005 as a result of their properties continuing investigation or revenues otherwise that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(dj) Any fees due There shall not have occurred a material adverse change in the Lead Arrangerbusiness, Administrative Agent assets, properties, liabilities (actual and contingent), operations, condition (financial or any Lenderotherwise) or prospects of the Borrower and its Subsidiaries, including any arrangement feestaken as a whole, agency fees and upfront feessince December 31, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date 2003.
(k) CT Corporation System shall have been paidappointed as Process Agent for the period through the Maturity Date in accordance with Section 9.09(d).
(el) Borrower The representations and warranties of each Credit Party set forth in the Loan Documents shall have paid be true in all reasonable fees, charges material respects on and disbursements as of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with .
(m) After giving effect to the conditions specified in this §3.1Amendment and Restatement, each Lender that has signed this Amendment no Default shall have occurred and 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 continuing.
(n) The Administrative Agent shall have received notice from such Lender prior the fee referred to in Section 2.07(c) for the proposed accounts of the Existing Lenders. Promptly after the Amendment Effective Date specifying its objection thereto and occurs, the Administrative Agent hereby agrees to promptly provide shall notify the Borrower with a copy of any and the Lenders thereof, and such notice received by shall be conclusive and binding. Notwithstanding the Administrative Agentforegoing, the Amendment and Restatement shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) before 5:00 p.m., New York City time, on March 1, 2005.
Appears in 2 contracts
Sources: Loan Agreement (Vitro Sa De Cv), Loan Agreement (Vitro Sa De Cv)
Amendment Effective Date. This Amendment shall become effective as (a) The effectiveness of this Amendment, the amendments set forth in Sections 3 and 4, the making of the 2025 Refinancing Term Loans and effectiveness of the 2025 Refinancing Revolving Credit Commitment and the making of any 2025 Refinancing Revolving Credit Loans thereunder, in each case, are subject to the satisfaction (or waiver by the 2021 Refinancing Term Lenders and the 2021 Refinancing Revolving Credit Lenders) of the following conditions (the first date first written above on which all such conditions precedent are satisfied (or waived), the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:):
(ai) The the Administrative Agent’s receipt Agent shall have received counterparty signature pages of the following, this Amendment from each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicableeach Guarantor, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) 2025 Refinancing Term Lender and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower2025 Refinancing Revolving Credit Lender;
(ii) if so requested within three Business Days prior the Administrative Agent shall have received (A) copies of each Organizational Document of each Loan Party, as applicable, and, to the extent applicable, certified as of the Amendment Effective Date, Date or a Note executed recent date prior thereto by Borrower in favor the appropriate Governmental Authority; (B) signature and incumbency certificates of the officers of such Persons executing the Loan Documents on behalf of each requesting Lender;
Loan Party; (iiiC) such certificates copies of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers the Board of Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity Directors of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the other Loan Documents delivered pursuant executed in connection with the Amendment, certified as of the Amendment Effective Date by any of its directors, secretary or an assistant secretary as being in full force and effect without modification or amendment and (D) other than with respect to this § 3.1 the U.K. Borrower and, with respect to which Borrower is a party;
(iv) any other Loan Party, to the extent applicable and available in such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its Loan Party’s jurisdiction of organization, issued by a good standing certificate from the appropriate authorities applicable Governmental Authority of such jurisdictioneach Loan Party’s jurisdiction of incorporation, organization or formation, dated as of the Amendment Effective Date or a recent date prior thereto;
(viii) favorable opinions the Administrative Agent shall have received a customary opinion of (A) ▇▇▇▇▇▇▇ ▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Esq., General Counsel special United States counsel for Borrower, the Company and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇& ▇▇▇▇ L.L.P.(UK) LLP, special Texas English legal advisers for the Company as to capacity of the Designated Borrower and New York counsel UK Borrower to Borrowerenter this Amendment, addressed to dated as of the Amendment Effective Date.
(iv) the Administrative Agent and each Lender;
(vi) shall have received a certificate signed by a Responsible Officer of Borrower the Company certifying (Aa) that the conditions specified in Section 4.02(aSections 5(b) and (bc) of the Credit Agreement have been satisfied, satisfied and (Bb) that there has been no event or circumstance since December 31September 28, 2016 2024 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect;
(v) Concurrently with the making of the 2025 Refinancing Term Loans, (a) the entire aggregate principal amount of the Existing Term Loans and (Cb) all accrued interest, fees and other amounts accrued immediately prior to this Amendment becoming effective in connection therewith shall have been paid in full;
(vi) Concurrently with the availability of the 2025 Revolving Credit Facility, (i) the current Debt Ratings; andRevolving Credit Commitments in effect immediately prior to this Amendment becoming effective shall have been terminated and the entire aggregate principal amount of the all Existing Revolving Credit Loans outstanding (if any) immediately prior to this Amendment becoming effective shall have been paid in full and (ii) all accrued interest, fees and other amounts accrued prior to this Amendment becoming effective in connection therewith shall have been paid in full;
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid pursuant to the Fee Letter on or before the Amendment Effective Date shall have been paid (or caused to have been paid.) by the Company to the Administrative Agent on the Amendment Effective Date;
(eviii) Borrower The Company shall have delivered a Committed Loan Notice with respect to the 2025 Refinancing Term Loans and a notice of prepayment with respect to the Existing Term Loans, in each case, in accordance with the Credit Agreement;
(ix) The Company shall have paid all reasonable fees, charges and disbursements of counsel ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP for which invoices have been presented at least three (3) Business Days prior to the Amendment Effective Date (it is hereby expressly acknowledged and agreed that any fees paid pursuant to this clause (ix) shall be paid by the Company to the Administrative Agent on the Amendment Effective Date);
(x) The Loan Parties shall have provided the documentation and other information regarding the Loan Parties to the Administrative Agent and Lenders that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, to the extent invoiced the Company shall have received written reasonable requests therefor (and in the case of any Lender request, through the Administrative Agent) at least three (3) Business Days prior to the Amendment Effective Date. For ; and
(xi) The conditions specified in Section 2.19 of the Credit Agreement with respect to the Refinancing shall have been satisfied (it being understood and agreed that, as of the date hereof, such conditions shall be deemed to be satisfied).
(b) Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this §3.1Section 6(a) hereof, each 2025 Refinancing Term Lender and each 2025 Refinancing Revolving Credit Lender that has signed this Amendment 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 notice from such 2025 Refinancing Term Lender or such 2025 Refinancing Revolving Credit Lender, as the case may be, prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentthereto.
Appears in 2 contracts
Sources: Refinancing Amendment (Hologic Inc), Refinancing Amendment No. 4 and Amendment to Pledge and Security Agreement (Hologic Inc)
Amendment Effective Date. This First Amendment shall become effective as of the date first written above date, on or before September 30, 1996 (the “"First Amendment Effective Date”), upon the satisfaction ") when each of the following conditions precedentshall have been satisfied:
(a) The Administrative Agent’s receipt Lender shall have received each of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (orfollowing documents, in the each case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative AgentLender:
(i) counterparts hereof executed counterparts of this Amendmentby each Borrower, sufficient in number for distribution to the Administrative AgentHoldings, each Lender and BorrowerLender;
(ii) if so requested within three Business Days prior to an Amendatory Agreement in substantially the Amendment Effective Date, form of Annex D attached hereto and made a Note executed by Borrower in favor of each requesting Lenderpart hereof;
(iii) such certificates UCC amendment statements with respect to each UCC-1 financing statement delivered to Lender as of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as the Administrative Agent may reasonably require evidencing Closing Date from the identity, authority Company and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇▇▇▇ International (exclusive of any such UCC-1 financing statements filed or recorded in the State of Texas), giving effect to the amendments, pursuant to the Amendatory Agreement referred to in the immediately preceding clause (ii), to the Borrower Junior Security Agreements executed by the Company and ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ International;
(A) stock certificate(s) representing 100% of the Capital Stock of Finsub, together with stock powers (executed in blank) therefor shall have been delivered to the Revolving Credit Agent, (B) all subordinated promissory notes issued to the Company and ▇▇▇▇▇▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed International pursuant to the Administrative Agent Permitted Receivables Transaction Documents, endorsed in blank, shall have been delivered to the Revolving Credit Agent, (C) replacements for the applicable exhibits to the Borrower Junior Pledge Agreements executed by the Company and each Lender▇▇▇▇▇▇▇▇▇▇ International reflecting the pledge of the property described in subclauses
(A) and (B) above, and (D) an acknowledgement of pledge executed by Finsub;
(v) (A) a Junior Pledge Agreement executed by Pegasus, in substantially the form of Exhibit D to the Loan Agreement, (B) stock certificate(s) representing 100% of the Capital Stock of Finsub2, together with stock powers (executed in blank) therefor shall have been delivered to the Revolving Credit Agent, and (C) an acknowledgement of pledge executed by Finsub2;
(vi) a fully executed copy of the Permitted Receivables Intercreditor Agreement;
(vii) a copy of each of the Permitted Receivables Transaction Documents, certified as of the First Amendment Effective Date by the Secretary or an Assistant Secretary of the Company (A) to be a true, correct and complete copy of each such document and (B) not to have been amended or rescinded;
(viii) a copy of each of the Multicurrency Loan Documents, certified as of the First Amendment Effective Date by the Secretary or an Assistant Secretary of Pegasus (A) to be a true, correct and complete copy of each such document and (B) not to have been amended or rescinded;
(ix) a certificate signed of the chief executive officer, chief financial officer or treasurer of the Company executed and delivered on behalf of the Borrowers certifying that all conditions precedent required to be satisfied by Holdings, the Company, the other Borrowers or any Subsidiary Guarantor for the effectiveness of this First Amendment have been satisfied;
(x) a Responsible Officer certificate of Borrower the Secretary or Assistant Secretary of Holdings, each Borrower, Finsub and Finsub2 dated the First Amendment Effective Date certifying (A) that the conditions specified in Section 4.02(a) names and (b) true signatures of the Credit Agreement have been satisfiedincumbent officers of such Persons authorized to sign this Amendment and the other Transaction Documents executed in connection with this Amendment to which it is a party, (B) that there has been no event or circumstance since December 31the By-laws of such Person as in effect on the date of such certification, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) resolutions of such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses Person's Board of Directors approving and approvals required in connection with authorizing the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Transaction Documents executed in connection with this Amendment to which it is a party shall and (D) the Articles or Certificate of Incorporation, certified by the applicable Government Authority, if not previously delivered to Lender, or that there have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or no changes in the aggregate, to have a Material Adverse Effect, Certificate or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to Articles of Incorporation of such Person since the knowledge date of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred most recent certification thereof by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required Secretary of State of the applicable State delivered to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.Lender;
Appears in 2 contracts
Sources: Loan Agreement (Muehlstein Holding Corp), Loan Agreement (Muehlstein Holding Corp)
Amendment Effective Date. This Amendment The amendments to and the restatement of the Existing Credit Agreement provided for herein shall not become effective as of until the date first written above (the “Amendment Effective Date”), upon the satisfaction on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received (i) counterparts of this Agreement that, when taken together, bear the signatures of the followingBorrower and the Required Lenders or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of signed signature pages of this Agreement) that the Borrower and the Required Lenders have signed counterparts of this Agreement.
(b) The Administrative Agent shall have received a certificate, each of which shall be originalsdated the Amendment Effective Date and signed by the President, telecopies a Vice President or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Financial Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 confirming compliance with this Amendment and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified set forth in Section 4.02(aparagraphs (a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effectSection 4.02.
(c) There The Borrower shall not be in Pro Forma Compliance and no Default shall have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effectcontinuing.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date The Tritel Transactions shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges consummated and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from (i) copies of the executed documentation governing such Lender prior to transactions, each certified by the proposed Amendment Effective Date specifying its objection Secretary or Assistant Secretary of the Borrower as a true and correct copy and (ii) such other documents relating thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received reasonably requested by the Administrative Agent, its counsel or the Lenders.
(e) All consents and approvals required to be obtained from any Governmental Authority or other Person in connection with the Tritel Transactions shall have been obtained.
(f) The Administrative Agent shall have received an updated Perfection Certificate (giving effect to the Tritel Transactions and the AT&T Swap) dated the Amendment Effective Date and signed by an executive officer or Financial Officer of the Borrower, together with all documents and instruments including Uniform Commercial Code financing statements and amendments to financing statements, required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect (or continue to perfect) the Liens intended to be created under the Security Agreement.
(a) shall become effective upon the date on which each of the conditions contained in paragraphs (a) and (c) of this Section 4.03 are satisfied (or waived in accordance with Section 9.02).
Appears in 2 contracts
Sources: Credit Agreement (Telecorp Communications Inc), Credit Agreement (Telecorp PCS Inc /Va/)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender Lender, each Borrower and BorrowerPAA;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower such Loan Party is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, each Loan Party and General Partner and GP LLC are is duly organized or formed, and that each Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(viv) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for BorrowerBorrowers and PAA, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to BorrowerBorrowers and PAA, and (C) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special Canadian counsel to PMCULC, addressed to the Administrative Agent and each Lender;
(viv) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a), (b) and (bd) of the Credit Agreement have been satisfiedsatisfied (and in the case of said Section 4.02(d), if no Request for Credit Extension is made on the Amendment Effective Date, then determined in respect to then Outstanding Amount of Obligations, if any, of each Borrower), (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect, and (C) the current PAA Debt Ratings; and
(viivi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of BorrowerPAA, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower PAA or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Plains Gp Holdings Lp), Credit Agreement (Plains All American Pipeline Lp)
Amendment Effective Date. This Amendment shall become effective be binding upon all parties to the Credit Agreement as of the date first written above (the “"AMENDMENT EFFECTIVE DATE") that Administrative Agent receives the following (other than (a) Atlas Arkansas' organizational documents under CLAUSE (c) below, and (b) the Opinion of Pray, Walker, Jackman, Williamson & Marlar, Oklahoma counsel to the Borrower, which items ar▇ ▇▇▇▇▇▇ ▇erm▇▇▇▇▇ to be delivered after the Amendment Effective Date”)Date but no later than one Business Day following the acceptance of such organizational documents by the Oklahoma Secretary of State, upon or such later date as the satisfaction of the following conditions precedent:Administrative Agent may agree):
(a) The sufficient counterparts of this Amendment, executed and delivered to Administrative Agent by (i) each Obligor, (ii) Administrative Agent’s receipt , (iii) Issuing Bank, and (iv) each Lender;
(b) replacement Revolver Notes, reflecting the Lenders' revised Revolver Commitments;
(c) From each Obligor, such certificates of secretary, assistant secretary, manager, or general partner, as applicable, as the Administrative Agent may require, certifying (i) resolutions authorizing the execution and performance of (A) this Amendment and the other Loan Documents that such Person is executing in connection herewith, and (B) the Stock Purchase Agreement and each other agreement, document and instrument executed and delivered by Borrower or any other Obligor and any counterparty thereto in connection with the Atlas Arkansas Acquisition, as applicable (collectively, the "ATLAS ARKANSAS ACQUISITION DOCUMENTS"), (ii) the incumbency and signature of the followingofficer executing such documents, each of which shall be originalsand (iii) that there has been no change in such Person's organizational documents since April 14, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date 2005 (or, in the case of certificates of governmental officialsif there has been a change, a recent date before the Amendment Effective Date and in the case of financial statementsAtlas Arkansas' organizational documents attaching a copy thereof);
(d) A copy of the Atlas Arkansas Acquisition Documents, including without limitation the date Escrow Agreement pursuant to which Enogex agrees to deposit into an escrow or period similar account an amount sufficient to repurchase the portion guaranteed by Enogex of the 7.15% Notes due 2018 issued pursuant that certain Indenture dated as of June 1, 1998, between NOARK Pipeline Finance, L.L.C., and The Bank of New York, as trustee, and all schedules and exhibits to such financial statements) Atlas Arkansas Acquisition Documents (as supplemented or amended prior to the Amendment Effective Date), certified by Borrower as true and each complete, in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and BorrowerCo-Lead Arrangers;
(iie) if so requested within three Business Days prior to A duly completed compliance certificate, dated as of the Amendment Effective Date, a Note executed by substantially in the form of Exhibit C to the Credit Agreement, demonstrating pro forma compliance with Sections 9.13, 9.14, and 9.15 of the Credit Agreement as of the end of the most recent fiscal quarter for which Borrower in favor is required to provide financial statements pursuant to Section 8.01 of each requesting Lender;
the Credit Agreement, after giving effect to the Atlas Arkansas Acquisition and after giving effect to any Indebtedness (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as including the Administrative Agent may reasonably require evidencing obligations under the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Credit Agreement and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a partyDocuments) incurred in connection therewith;
(ivf) such documents and certifications Such financial statements of NOARK Pipeline System, Limited Partnership ("NOARK"), as the Administrative Agent may be reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued requested by the appropriate authorities of such jurisdictionCo-Lead Arrangers;
(vg) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a A certificate signed by a Responsible Officer of Borrower Borrower, dated as of the Amendment Effective Date, certifying (Aa) that the conditions specified in Section 4.02(a) and closing of the Atlas Arkansas Acquisition is being consummated on such date; (b) additions as applicable to the Annexes to each Pledge, Assignment, and Security Agreements previously executed by the Obligors to reflect ownership of the Shares; (c) revised Schedules to the Credit Agreement, as applicable; (d) that after giving effect to this Amendment and the revised Schedules to the Credit Agreement and Annexes to the Pledge, Assignment, and Security Agreements, both before and after taking into account the Atlas Arkansas Acquisition and the funding of Loans on such date, the representations and warranties contained in Article VII of the Credit Agreement have been satisfied, and in the Security Instruments are true and correct in all material respects on and as of such date except to the extent such representations and warranties relate solely to an earlier date; (Be) that there after giving effect to this Amendment, both before and after giving effect to the Atlas Arkansas Acquisition, no Default or Event of Default has been no event or circumstance occurred and is continuing as of such date; (f) that since December 31, 2016 that 2004, there has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a no "Material Adverse Effect" (as such term is defined in the Stock Purchase Agreement) with respect to the Borrower; (g) that there is no litigation, investigation or proceeding known to and affecting Borrower or any Affiliate of Borrower for which Borrower is required to give notice pursuant to Section 8.02 of the Credit Agreement; and (iih) any actionthat there are no actions, suitsuits, investigation, proceeding, claim investigations or dispute proceedings pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration any court or before any Governmental Authority, arbitrator or governmental authority by or against Borrower Borrower, any Guarantor, or any of its Subsidiaries or against any of their properties or revenues respective properties, that either individually or in the aggregate(i) if adversely determined, could reasonably be expected to have materially and adversely affect Borrower, any Guarantor, or the Mortgaged Property, taken as a Material Adverse Effectwhole, or the Shares, or (ii) seek to affect or pertain to any transaction contemplated hereby, the Atlas Arkansas Acquisition, or the ability of Borrower or any Guarantor to perform its obligations under the Loan Documents;
(h) The Security Instruments listed on SCHEDULE 1 hereto, duly completed and executed in sufficient number of counterparts for recording, if necessary, including delivery of any requisite mortgage tax affidavit and payment for applicable mortgage tax, if any due; all original certificates of partnership units or members' equity, blank stock powers, and Intercompany Notes duly endorsed as required under such Security Instruments.
(di) Any fees due A Guaranty Agreement executed by Atlas Arkansas in favor of the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by for the benefit of the Lenders;
(j) A certificate of a Responsible Officer of Borrower, required to be paid on or before dated as of the Amendment Effective Date shall have been paid.Date, (a) listing the Material Agreements executed in connection with, or assumed in connection with, the Atlas Arkansas Acquisition, and (b) certifying that Borrower has no knowledge of any material default thereunder by any party thereto;
(ek) Borrower shall have paid all reasonable fees, charges and disbursements An opinion of counsel to the Administrative Agent Obligors (including local counsel) acceptable to the Co-Lead Arrangers, with respect to the existence of the Obligors, due authorization and execution of the Amendment, the Atlas Arkansas Acquisition Documents, and the other Loan Documents executed in connection therewith, enforceability of the Amendment, the Atlas Arkansas Acquisition Documents, and such Loan Documents, including without limitation the Security Instruments, under the laws of the states wherein the Mortgaged Properties are located, and other matters incident to the transactions herein contemplated as the Co-Lead Arrangers may reasonably request, each in form and substance satisfactory to the Co-Lead Arrangers;
(l) Title information as the Co-Lead Arrangers may require setting forth the status of title to the Properties (including, without limitation, the Pipeline Properties (including title to the Pipelines owned by NOARK)) acceptable to the Co-Lead Arrangers;
(m) Appropriate UCC search certificates and other evidence satisfactory to the Co-Lead Arrangers with respect to the Obligors' Properties reflecting no prior Liens, other than Excepted Liens;
(n) Environmental assessments and other reports to the extent invoiced prior maintained by the Atlas Arkansas or NOARK covering NOARK's Properties, reporting on the current environmental condition of such Properties, satisfactory to the Amendment Effective Date. For purposes of determining compliance with Co-Lead Arrangers and the conditions specified in this §3.1Lenders;
(o) A letter from CT Corporation System, each Lender that has signed this Amendment shall be deemed to have consented toInc., approved or accepted or to be satisfied with, each document or other matter required thereunder agent acceptable to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent, accepting service of process in the State of New York on behalf of Atlas Arkansas; and
(p) such other agreements, certificates, documents and evidence of authority as Co-Lead Arrangers, any Lender or counsel to the Co-Lead Arrangers may reasonably request.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Atlas Pipeline Partners Lp), Revolving Credit and Term Loan Agreement (Atlas Pipeline Holdings, L.P.)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if as applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this AmendmentAmendment from each Borrower, PCLPULC, Administrative Agent and Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and Borrowerthe Company;
(ii) if so requested within at least three Business Days prior to the Amendment Effective Date, a Swing Line Note executed by Borrower PCLPULC in favor of the Swing Line Lender and a Committed Loan Note executed by PCLPULC in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower PCLPULC 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 Amendment, the Credit Agreement and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower PCLPULC is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are PCLPULC is duly organized or formed, and that Borrower PCLPULC is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇R▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrowerthe Company and PCLPULC, and (B) V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P.LLP, special Texas and New York counsel to Borrowerthe Company and PCLPULC, and (C) C▇▇ ▇▇▇▇▇▇, special Canadian counsel to PCLPULC, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in PCLPULC is a wholly-owned Subsidiary of the aggregate, a Material Adverse Effect Company and (C) the current Debt RatingsPCLPULC’s true and correct Canadian corporate access number and jurisdiction of organization; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower The Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes .
(i) Upon the reasonable request of determining compliance any Lender made at least five days prior to the Amendment Effective Date, the Company shall have provided to such Lender with respect to PCLPULC, and such Lender shall be reasonably satisfied with, the conditions specified documentation and other information so requested with respect to PCLPULC in this §3.1connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three days prior to the Amendment Effective Date, and (ii) if PCLPULC qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, PCLPULC shall have delivered, to each Lender that has signed this Amendment shall be deemed so requests, a Beneficial Ownership Certification in relation 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentit.
Appears in 2 contracts
Sources: Credit Agreement (Plains Gp Holdings Lp), Credit Agreement (Plains All American Pipeline Lp)
Amendment Effective Date. This Amendment The obligations of the Lenders to make Term Loans pursuant to the amendment and restatement of this Agreement in the form hereof shall not become effective as of until the date first written above (the “Amendment Effective Date”), upon the satisfaction on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of the followingAmendment Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of the Amendment Agreement) that such party has signed a counterpart of the Amendment Agreement.
(b) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, each existence and, to the extent applicable, good standing of which the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Administrative Agent shall be originalshave received a certificate, telecopies dated the Amendment Effective Date and signed by the President, a Vice President or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Financial Officer of the Borrower, if applicableconfirming compliance with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02.
(d) The Existing Restated Credit Agreement shall have been amended and restated as the Restated Credit Agreement.
(e) The Administrative Agent shall have received all interest, fees and other amounts due and payable or accrued on or prior to the Amendment Effective Date under this Agreement or the Existing Parent Credit Agreement, including, to the extent invoiced at least one Business Day prior to the Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower under this Agreement or any other Loan Document.
(f) Each Tranche B Lender (as defined in the Existing Parent Credit Agreement) shall have received (or, substantially simultaneously with the funding of the Term Loans on the Amendment Effective Date, shall receive) payment in full of the principal of and interest accrued on each Tranche B Term Loan held by it and all other amounts owing to it or accrued for its account under the Existing Parent Credit Agreement, and all interest, fees and other amounts accrued or owing under each of the Existing Parent Credit Agreement and the Existing Restated Credit Agreement, including to the extent invoiced at least one Business Day prior to the Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower thereunder, shall have been (or, substantially simultaneously with the funding of the Term Loans on the Amendment Effective Date, shall be) paid in full.
(g) All consents and approvals required to be obtained from any Governmental Authority or other Person in connection with the execution of this Agreement shall have been obtained.
(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 Date) of each of (ori) Davis Polk & Wardwell, New York counsel for the Borrower and the Subsidiaries, substan▇▇▇▇▇▇ ▇▇ the ▇▇▇▇ ▇▇ Exhibit D-1, (ii) Jones, Walker, Waechter, Poitevant, Carrère & Denègre, L.L.P., U.S. counsel for the Borrower and the ▇▇▇▇▇▇▇▇ries, substantially in ▇▇▇ ▇▇▇m of Exhibit D-2, and (iii) local counsel in each jurisdiction where a Subsidiary Guarantor, a Subsidiary Grantor (as defined in the Collateral Agreement) or a Permitted Pledgee the Equity Interests in which are being pledged pursuant to the Collateral Agreement or any Foreign Pledge Agreement is organized, in the each case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:.
(i) executed counterparts The Collateral and Guarantee Requirement shall have been satisfied. The Loans made, the application of this Amendment, sufficient the proceeds thereof and the termination of existing Indebtedness under the Existing Parent Credit Agreement on the Amendment Effective Date shall be deemed to have occurred as set forth in number for distribution to the Amendment Agreement. The Administrative Agent, each Lender Agent shall promptly notify the Borrower and Borrower;
(ii) if so requested within three Business Days prior to the Lenders of the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) and such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and notice shall be in full force conclusive and effectbinding.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Amendment Effective Date. This The Amendment shall become effective as of upon the date first written above (the “Amendment Effective Date”), upon the satisfaction which each of the following conditions precedent:
events shall have been satisfied (a) The Administrative Agent’s receipt in the case of the following, each of which shall document to be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicablereceived, each dated the Amendment Effective Date unless otherwise indicated):
(a) receipt by the Administrative Agent of counterparts hereof signed by each of the parties hereto (or, in the case of certificates of governmental officialsany party as to which an executed counterpart shall not have been received, a recent date before receipt by the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts it of this Amendmenttelegraphic, sufficient in number for distribution to the Administrative Agent, each Lender and Borrowertelex or other written confirmation from such party of execution of a counterpart hereof by such party);
(iib) if so requested within three Business Days prior to receipt by the Administrative Agent of a duly executed original Note for the account of each Lender becoming a Lender on the Amendment Effective Date, a Note executed by Borrower in favor complying with the provisions of each requesting LenderSection 2.03;
(iiic) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as receipt by the Administrative Agent may reasonably require evidencing the identity, authority and capacity of duly executed counterparts of an amendment of each Responsible Officer thereof authorized Collateral Document, to act as a Responsible Officer in connection with this Amendment the extent any such amendment is necessary or advisable, or evidence satisfactory to the Administrative Agent that adequate arrangements for execution and the other Loan Documents delivered pursuant delivery of any such amendments have been made (and all Lenders hereby consent to this § 3.1 to which Borrower is a partyall such amendments);
(ivd) such documents and certifications as receipt by the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities an opinion of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., counsel for the Obligors, substantially in the form of Exhibit D hereto and covering such additional matters relating to the transactions contemplated hereby as the Required Lenders may reasonably request;
(e) receipt by the Administrative Agent of (i) an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special Texas and New York counsel for the Administrative Agent, substantially in the form of Exhibit E-1 hereto and (ii) an opinion or memorandum of special counsel for the Agents in each of the United Kingdom, Hong Kong, Finland, Germany, the U.S. Virgin Islands, France, Canada and Mexico, in the forms attached as Exhibit E-2, and each covering such additional matters relating to Borrowerthe transactions contemplated hereby as the Agents may reasonably request, addressed or evidence satisfactory to the Administrative Agent and each Lenderthat adequate arrangements for the delivery of any such opinion or memorandum under clause (ii) have been made;
(vif) a certificate signed receipt by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consentsof evidence satisfactory to it that all accrued interest, licenses fees and approvals required other amounts payable under the Agreement as in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents effect immediately prior to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (including Section 2.06 thereof, but excluding Section 2.12 thereof) have been paid in full;
(g) receipt by the Administrative Agent of the consent to this Amendment of each Person that was a Lender immediately prior to the Amendment Effective Date but is not a Lender on or after the Amendment Effective Date (which consent may be evidenced by such Person being a signatory hereto);
(h) receipt by the Administrative Agent of a certificate signed by the chief financial officer or treasurer of the Borrower certifying that, immediately before and after giving effect to the transaction contemplated hereby on the Amendment Effective Date, (i) any event or condition that has had or could reasonably no Default shall have occurred and be expected, either individually or in the aggregate, to have a Material Adverse Effect, or continuing and (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge representations and warranties of Borrower, threatened the Obligors contained in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably this Agreement shall be expected to have a Material Adverse Effect.true;
(di) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred receipt by the Lead Arranger and Administrative Agent, in each casefor its own account and for the accounts of the Lenders, as agreed in writing by Borrower, required to be paid of all fees payable on or before the Amendment Effective Date shall have been paid.Date;
(ej) Borrower shall have paid receipt by the Administrative Agent of all reasonable feesdocuments the Administrative Agent may reasonably request relating to the existence of the Obligors, charges the corporate authority for and disbursements the validity of counsel the Loan Documents and the Deltec Acquisition, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent. The Administrative Agent to shall promptly notify the extent invoiced prior to Borrower and the Lenders of the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment and such notice 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto conclusive and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentbinding on all parties hereto.
Appears in 1 contract
Amendment Effective Date. This Amendment Except as set forth in Section 4.01 with respect to the provisions specified therein, this Amended Agreement shall become effective as of on the date first written above (the “Amendment Effective Date”), upon the satisfaction of on when all the following conditions precedent:shall have been satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each party hereto either 1) a counterpart of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period this Agreement signed on behalf of such financial statementsparty or 2) and each in form and substance written evidence reasonably satisfactory to the Administrative Agent:Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(ib) executed counterparts of this Amendment, sufficient in number for distribution The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, each Lender the Collateral Agent, the Issuing Banks and Borrower;
(ii) if so requested within three Business Days prior to the Lenders and dated the Amendment Effective Date, a Note executed by Borrower in favor ) of each requesting Lender;
(iii) such certificates of resolutions or other action▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, incumbency certificates and/or other certificates Esq., General Counsel of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner ▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the Loan Parties and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇Willkinson ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.LLP, General Counsel special regulatory counsel for Borrowerthe Loan Parties, substantially in the forms of Exhibits ▇-▇, ▇-▇ and B-3, respectively, and covering such corporate, regulatory (Bincluding with respect to Governmental Authorizations) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.and other matters relating to the Wireline Companies, special Texas and New York the Loan Documents or the Directories Transactions as the Required Lenders or the Lead Arranger shall reasonably request. The Borrower hereby requests each such counsel to Borrowerdeliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, addressed existence and good standing of each Loan Party, the authorization of execution, delivery and performance of the Amended Agreement and any other legal matters relating to the Wireline Companies, the Loan Documents or the Directories Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and each Lender;its counsel.
(vid) The Administrative Agent shall have received a certificate certificate, dated the Amendment Effective Date and signed by the President, a Responsible Vice President or a Financial Officer of Borrower certifying (A) that the Borrower, confirming compliance with the conditions specified set forth in Section 4.02(aparagraphs (a) and (b) of Section 4.03.
(e) The Administrative Agent shall have received all fees and other amounts due and payable by any Loan Party to any of the Credit Agreement Lender Parties on or prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by any Loan Party under the Loan Documents.
(f) The conditions set forth in Section 4.01 shall have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(bg) All consents, licenses and approvals required in connection with the execution, delivery and performance by The Borrower and the validity against Borrower of this Amendment and each shall have used all of the other Loan Documents net cash proceeds from the Debt Offering to which it is a party shall have been obtained and shall be in full force and effectprepay Tranche B Term Loans.
(ch) There shall not have occurred during All accrued interest on and other amounts (including amounts payable pursuant to Section 2.15 of the period from December 31, 2016 through and including Existing Credit Agreement) due in respect of the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge Tranche B Term Loans as of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(ei) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 The Administrative Agent shall have received notice from such Lender prior a Notice of Borrowing with respect to the proposed Tranche B-1 Term Loans to be made on the Amendment Effective Date.
(j) The Administrative Agent shall have received a notice of prepayment in respect of the Tranche B Term Loans in accordance with Section 2.10(f) of the Existing Credit Agreement. On the Amendment Effective Date, without further action by any of the parties thereto, the Existing Agreement will be automatically amended and restated to read as this Agreement reads. On and after the Amendment Effective Date, the rights and obligations of the parties hereto shall be governed by the provisions hereof. The rights and obligations of the parties with respect to the period before the Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees shall continue to promptly provide Borrower with a copy of any such notice received be governed by the Administrative Agentprovisions thereof as in effect before the Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Windstream Corp)
Amendment Effective Date. This The Amendment shall become effective as of on the date first written above (the “Amendment Effective Date”), upon the satisfaction that each of the following conditions precedent:shall have been satisfied (or waived in accordance with Section 9.05):
(a) The Administrative Agent’s receipt by the Documentation Agent of counterparts hereof signed by each of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date parties hereto (or, in the case of certificates any party as to which an executed counterpart shall not have been received, receipt by the Documentation Agent in form satisfactory to it of governmental officialstelegraphic, telex or other written confirmation from such party of execution of a recent date before counterpart hereof by such party);
(b) receipt by the Amendment Documentation Agent of a duly executed Note (or Notes) for the account of each Lender becoming a Lender on the Effective Date, complying with Section 2.03;
(c) receipt by the Documentation Agent of duly executed counterparts of an amendment of each Collateral Document, to the extent any such amendment is necessary or advisable (including the Subsidiary Guaranty Agreement and the amended Mortgages), together with opinions of local counsel referred to on Schedule 1 substantially in the form attached to Schedule 1 (and all Lenders hereby consent to all such amendments);
(d) receipt by the Documentation Agent of evidence satisfactory to it that all accrued interest, fees and other amounts payable under the Agreement as in effect immediately prior to the Effective Date (including Section 2.06 thereunder, but excluding Section 2.12 thereunder) have been paid in full;
(e) receipt by the Documentation Agent of the consent to this Amendment of each Person that was a Lender immediately prior to the Effective Date but is not a Lender on or after the Effective Date (which may include being a signatory hereto);
(f) receipt by the Documentation Agent of a certificate signed by the chief financial officer or treasurer of the Borrower certifying that, immediately before and after giving effect to the transactions contemplated hereby on the Effective Date, no Default shall have occurred and be continuing;
(g) receipt by the Documentation Agent of a certificate signed by the chief financial officer or treasurer of the Borrower certifying that the representations and warranties of each Obligor made in or pursuant to the case Financing Documents are true as of financial statementsthe Effective Date;
(h) receipt by the Documentation Agent of opinions of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the date or period Borrower, substantially to the effect of such financial statements) Exhibit B-1 hereto, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and General Counsel of the Borrower, substantially to the effect of Exhibit B-2 hereto, and each in form and substance reasonably satisfactory covering such additional matters relating to the Administrative Agent:transactions contemplated hereby as the Required Lenders may reasonably request;
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued receipt by the appropriate authorities Documentation Agent of such jurisdiction;
(v) favorable opinions an opinion of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇ & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas counsel for the Documentation Agent, substantially in the form of Exhibit C hereto and New York counsel to Borrower, addressed covering such additional matters relating to the Administrative Agent and each Lendertransactions contemplated hereby as the Required Lenders may reasonably request;
(vij) a certificate signed receipt by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) Administrative Agent, for its own account and (b) for the accounts of the Credit Agreement have been satisfiedLenders and the Documentation Agent, (B) that there has been no event of all fees payable on or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in before the aggregate, a Material Adverse Effect and (C) the current Debt RatingsEffective Date; and
(viik) such other assurances, certificates, documents, consents or opinions as receipt by the Administrative Documentation Agent of all documents it may reasonably require.
(b) All consents, licenses and approvals required in connection with request relating to the execution, delivery and performance by existence of the Borrower and the Subsidiary Guarantors, the corporate authority for and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront feesFinancing Documents, and any expenses incurred by other matters relevant hereto, all in form and substance satisfactory to the Lead Arranger and Administrative Documentation Agent, in each case, . The date on which the foregoing conditions shall first have occurred is referred to as agreed in writing by Borrower, required to be paid on or before the Effective Date; provided that the Amendment Effective Date shall have been paid.
(e) Borrower not become effective or be binding on any party hereto unless all of the foregoing conditions are satisfied not later than November 30, 1996. The documents referred to in this Section shall have paid all reasonable fees, charges and disbursements of counsel be delivered to the Administrative Documentation Agent to no later than the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified The certificates and opinions referred to in this §3.1, each Lender that has signed this Amendment Section 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 dated the Administrative Effective Date. The Documentation Agent shall have received notice from such Lender prior to promptly notify the proposed Amendment Effective Date specifying its objection thereto Borrower and the Administrative Agent hereby agrees to promptly provide Borrower with a copy Banks of any the Effective Date, and such notice received by the Administrative Agentshall be conclusive and binding on all parties hereto.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall have been satisfied (or waived by the 2025 Incremental Bridge Term Loan Lenders):
(a) The the Administrative Agent’s receipt Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by Holdings and the followingBorrower, the Administrative Agent and each of which 2025 Incremental Bridge Term Loan Lender;
(b) the Administrative Agent (or its counsel) shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed have received a certificate signed by a Responsible Officer of Holdings and the BorrowerBorrower (the “Thirteenth Amendment Loan Parties”), if applicable(i) certifying that the articles of formation (or equivalent document) of such Thirteenth Amendment Loan Party, each dated certified by the appropriate Governmental Authority of the state of formation of such Thirteenth Amendment Loan Party, and the operating agreement (or equivalent document) of such Thirteenth Amendment Loan Party, either (x) has not been amended since the prior date of delivery or (y) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Thirteenth Amendment Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Thirteenth Amendment Loan Party approving this Amendment, the transactions contemplated herein and authorizing execution and delivery hereof, certified by a Responsible Officer of such Thirteenth Amendment Loan Party as of the Amendment Effective Date to be true and correct and in force and effect as of such date, (oriii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Thirteenth Amendment Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 5;
(c) the Administrative Agent (or its counsel) shall have received, on behalf of itself and the 2025 Incremental Bridge Term Loan Lenders on the Amendment Effective Date, a customary written opinion of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, in its capacity as special New York counsel for the case Thirteenth Amendment Loan Parties;
(d) the Administrative Agent (or its counsel) shall have received a certificate of certificates good standing (to the extent such concept exists in the relevant jurisdiction) with respect to the Thirteenth Amendment Loan Parties certified as of governmental officials, a recent date before by the appropriate Governmental Authority of the state of formation;
(e) the Administrative Agent (or its counsel) shall have received a solvency certificate dated as of the Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of Holdings or the Borrower (or, at the option of Holdings or the Borrower, a third party opinion as to the solvency of Holdings and in the case of financial statements, the date or period of such financial statements) and each its subsidiaries on a consolidated basis in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution Amendment No. 13 Lead Arranger issued by a nationally recognized firm reasonably acceptable to the Administrative Agent, each Lender and BorrowerAmendment No. 13 Lead Arranger);
(iif) if so requested within the Administrative Agent (or its counsel) shall have received, at least three Business Days prior to the Amendment Effective Date, a Note executed all documentation and other information about any Loan Party required by Borrower regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in favor of each requesting Lendercase to the extent so reasonably requested in writing by the Administrative Agent no less than ten Business Days prior to the Amendment Effective Date);
(iiig) such certificates of resolutions all fees and reasonable out-of-pocket expenses required to be paid by (or other action, incumbency certificates and/or other certificates of Responsible Officers of on behalf of) the Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in including pursuant to Section 4.02(a) and (b) 9.03 of the Existing Credit Agreement have been satisfied, (Band pursuant to Section 7 hereof) that there has been no event or circumstance since December 31, 2016 that has had the Amendment No. 13 Lead Arranger pursuant to any commitment letter or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection fee letter with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(eor shall substantially contemporaneously be) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent in full in cash (to the extent invoiced with reasonable detail at least three Business Days prior to the Amendment Effective Date), including pursuant to that certain Fee Letter, dated as of May 3, 2025 between the Amendment No. For 13 Lead Arranger and the Borrower (the “Bridge Fee Letter”);
(h) the Administrative Agent shall have received a Borrowing Request in respect of the 2025 Incremental Bridge Term Loans to be made on the Amendment Effective Date five (5) Business Days prior to the Amendment Effective Date (or such shorter time as the Amendment No. 13 Lead Arranger may agree);
(i) the Specified Representations set forth in the Amended Credit Agreement with respect to the Amendment and the Amended Credit Agreement shall be true and correct in all material respects as of the Amendment Effective Date (except in the case of any representation and warranty that expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that if any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the definition thereof shall be the definition of “Material Adverse Effect” (as defined in the Amendment No. 13 Effective Date Acquisition Agreement) for purposes of determining compliance the making or deemed making of such Specified Representation on, or as of, the Amendment Effective Date (or any date prior thereto);
(j) no Event of Default under Section 7.01(a), (f) or (g) of the Existing Credit Agreement shall exist immediately prior to or immediately after giving effect to the effectiveness of this Amendment; and
(k) The Amendment No. 13 Effective Date Acquisition (as defined in the Amended Credit Agreement) shall have been, or substantially concurrently with the conditions specified initial funding of the 2025 Incremental Bridge Term Loans on the Amendment Effective Date, shall be, consummated in all material respects in accordance with the terms of the Amendment No. 13 Effective Date Acquisition Agreement (as defined in the Amended Credit Agreement). By executing this §3.1Amendment, each Lender that has signed this Amendment the 2025 Incremental Bridge Term Loan Lenders and the Administrative Agent shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder have waived, all conditions hereto and to be consented to or approved by or acceptable or satisfactory to a Lender unless the Amendment Effective Date. The Administrative Agent shall have received post a notice from such Lender prior to of effectiveness and occurrence of the proposed Amendment Effective Date, which shall be conclusive. The Administrative Agent and the 2025 Incremental Bridge Term Loan Lenders acknowledge and agree that the Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentis July 10, 2025.
Appears in 1 contract
Sources: First Lien Credit Agreement (Lucky Strike Entertainment Corp)
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall have been satisfied (or waived by the Second Amendment Term B Lenders and the Revolving Lenders):
(a) The the Administrative Agent’s receipt Agent (or its counsel) shall have received (i)(x) a counterpart signature page of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly this Amendment duly executed by a Responsible Officer of the Parent Borrower, if applicablethe Administrative Agent and each Second Amendment Incremental Term B Lender, (y) each dated applicable Lender Addendum, executed and delivered by each Second Amendment Replacement Term Lender and (z) a counterpart signature page of this Amendment duly executed by each Revolving Lender under the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before Existing Credit Agreement immediately prior to the Amendment Effective Date and (ii) a borrowing notice in accordance with Section 2.2 of the Amended Credit Agreement duly executed by the Parent Borrower with respect to (x) the Second Amendment Incremental Term Loans and (y) the Second Amendment Replacement Term Loans (in each case of clauses (i) and (ii), including by way of Electronic Signatures (as defined below));
(b) the Administrative Agent (or its counsel) shall have received a customary opinion from (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel to the Loan Parties, in each case, dated as of the Amendment Effective Date and addressed to the Administrative Agent and the Second Amendment Term B Lenders;
(c) the Administrative Agent shall have received (in each case, in English) (i)(x) the audited consolidated financial statements of Ham-Let and its subsidiaries as of December 31, 2019 and December 31, 2018, and the related audited consolidated statements of profit or loss, comprehensive income, changes in equity and cash flows for the fiscal years then-ended and (y) an audited consolidated and consolidating balance sheet of the Parent Borrower and its consolidated subsidiaries as of December 31, 2019 and December 31, 2018 and the related audited consolidated and consolidating statements of income and cash flows for the fiscal years then-ended; provided that (x) in the case of financial statementsclause (i)(x), the date filing of the foregoing financial statements with the Tel Aviv Stock Exchange Ltd. or the Israeli Securities Authority by Ham-Let will satisfy the foregoing requirements and (y) in the case of clause (i)(y), the filing of the foregoing required financial statements on form 10-K or form 10-Q, as applicable, with the SEC by the Parent Borrower will satisfy the foregoing requirements, and (ii) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Parent Borrower and its subsidiaries as of and for the twelve-month period ending September 30, 2020, prepared after giving effect to the Transactions as if the Transactions had occurred as of such financial statementsdate (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income);
(d) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, dated the Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a true and complete copy of its by-laws or operating, management, partnership or similar agreement (or a certification that true and complete copies of such documents or agreements have been previously attached to a certificate delivered to the Administrative Agent under the Existing Credit Agreement and that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the Administrative Agent on the Amendment Effective Date and certified therein as being the only amendments thereto as of such date), and (ii) a good standing certificate as of a recent date for each Loan Party from its relevant authority of its jurisdiction of organization;
(e) (i) with respect to the Second Amendment Incremental Term Loans only, (x) each of the Specified Ham-Let Merger Agreement Representations shall be true and correct in form all material respects (or in all respects, if qualified by materiality) as of the Amendment Effective Date, except to the extent expressly made as of an earlier date, in which case such Specified Ham-Let Merger Agreement Representations shall have been true and substance correct in all material respects (or in all respects, if qualified by materiality) as of such earlier date and (y) each of the Specified Representations shall be true and correct in all material respects (or in all respects, if qualified by materiality) as of the Amendment Effective Date, except to the extent expressly made as of an earlier date, in which case such Specified Representations shall have been true and correct in all material respects (or in all respects, if qualified by materiality) as of such earlier date; provided that to the extent any of the Specified Representations are qualified or subject to “material adverse effect,” the definition thereof shall be “Company Material Adverse Effect” as defined in the Ham-Let Merger Agreement for the purposes of any representations and warranties made, or to be made, on or as of the Amendment Effective Date and (ii) with respect to the Second Amendment Replacement Term Loans only, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Amendment Effective Date as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date;
(f) with respect to the Second Amendment Incremental Term Loans only, there shall not have occurred, following the date of the Ham-Let Merger Agreement, any event, change, effect or development that, individually or in the aggregate, has had or would reasonably satisfactory be expected to have a “Company Material Adverse Effect” (as defined in the Ham-Let Merger Agreement);
(g) all actions necessary to establish that the Administrative Agent will have a perfected first priority security interest (free and clear of all Liens other than Permitted Liens) in the Collateral under the Loan Documents shall have been taken (or shall be taken contemporaneously with funding) (it being understood that, the terms of the Existing Credit Agreement, including Section 6.10 thereof, shall govern the provision of any lien search or Collateral (including the creation or perfection of any security interest) with respect to Ham-Let or any of its Subsidiaries and in no event shall any such lien search or Collateral (including the creation or perfection of any security interest) constitute a condition precedent to the availability or funding of Second Amendment Term B Loans on the Amendment Effective Date);
(i) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent:
(i) executed counterparts of and other compensation required to be paid by the Parent Borrower in connection with this Amendment, sufficient in number for distribution Amendment to the Administrative Agent, the Second Amendment Lead Arranger and the Second Amendment Incremental Term B Lenders, including without limitation pursuant to the Commitment Letter and the Arranger Fee Letter, in each case dated as of December 16, 2020 and entered into between the Second Amendment Lead Arranger and the Parent Borrower with respect to the Second Amendment Incremental Term Loans, shall have been paid or shall have been authorized to be deducted from the proceeds of the funding under the Second Amendment Term B Loans to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing Term Lender, all accrued and unpaid interest in respect of the Existing Term Loans of such Existing Term Lender and Borrowerto, but not including, the Second Amendment Effective Date;
(i) prior to or substantially concurrently with the funding of the Second Amendment Term B Loans, including by use of proceeds thereof, the principal, accrued and unpaid interest, fees, premiums, if any, and other amounts under certain existing indebtedness for borrowed money of Ham-Let will be repaid in full, and all commitments to extend credit thereunder will be terminated and any security interests and guarantees (if any) in connection therewith shall be terminated and/or released (or arrangements for such repayment, termination and release reasonably acceptable to the Second Amendment Lead Arranger shall have been made) (the “Ham-Let Refinancing”);
(j) the Administrative Agent (or its counsel) shall have received a Solvency Certificate (as defined in the Existing Credit Agreement) dated as of the Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(k) the Ham-Let Acquisition shall be consummated pursuant to the Ham-Let Merger Agreement, substantially concurrently with the funding of the Second Amendment Incremental Term Loans, and no provision of the Ham-Let Merger Agreement shall have been amended or waived, and no consent or direction shall have been given thereunder, in any manner materially adverse to the interests of the Second Amendment Incremental Term B Lenders (in their capacity as such) without the prior written consent of such Second Amendment Incremental Term B Lenders (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (a) any amendment to the definition of “Company Material Adverse Effect” in the Ham-Let Merger Agreement shall be deemed to be materially adverse to the interests of such Second Amendment Incremental Term B Lenders (in their capacity as such); provided that in each case such Second Amendment Incremental Term B Lenders shall be deemed to have consented to such amendment, waiver or consent unless it shall object thereto within 3 Business Days of receipt of written notice or draft of such amendment, waiver or consent, (b) any of the following decreases in the Exchange Fund or the Merger Consideration (each as defined in the Ham-Let Merger Agreement as in effect on December 16, 2020) shall be deemed not to be materially adverse to the interests of such Second Amendment Term B Lenders (in their capacity as such): (i) decreases pursuant to any purchase price or similar adjustment provisions set forth in the Ham-Let Merger Agreement as of December 16, 2020; and (ii) if decreases of less than 15.0% in the aggregate; provided that, with respect to this clause (ii) the aggregate amount of the Second Amendment Term B Loans shall be reduced on a dollar-for-dollar basis by the amount of such decrease and (c) any increase in the consideration for the Ham-Let Acquisition shall be deemed not to be materially adverse to the interests of such Second Amendment Incremental Term B Lenders (in their capacity as such) so requested within long as funded with common equity proceeds or proceeds of preferred equity that does not constitute Disqualified Capital Stock;
(l) the Second Amendment Lead Arranger shall have received, at least three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or all documentation and other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as information about 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Parent Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party Guarantors that shall have been obtained and shall be reasonably requested by the Second Amendment Lead Arranger or any Second Amendment Term B Lender in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including writing at least 10 Business Days prior to the Amendment Effective Date (i) any event and that the Second Amendment Lead Arranger or condition that has had or could such Second Amendment Term B Lender reasonably be expecteddetermines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, either individually or in including the aggregate, to have a Material Adverse Effect, or PATRIOT Act and the CDD Rule and (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Amendment Effective Date, any Second Amendment Term B Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(m) (i) with respect to the Second Amendment Incremental Term Loans only, subject to Section 1.3 of the Existing Credit Agreement, no Event of Default under clauses (a) or (f) of Section 8.1 of the Existing Credit Agreement shall have occurred and be continuing immediately prior to (other than with respect to the Specified Events of Default) and immediately after giving effect to the incurrence of the Second Amendment Incremental Term Loans (it being understood that, for purposes of this clause (m)(i), the Parent Borrower hereby elects to exercise the LCT Election with respect to the Transactions) and (ii) with respect to the Second Amendment Replacement Term Loans only, no Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date (other than with respect to the Specified Events of Default immediately prior to the Second Amendment Effective Date) or after giving effect to the extensions of credit requested to be made on such date; and
(n) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (e), (f), (i), (k) and (m) of this Section 5. For purposes of determining compliance with whether the conditions specified in this §3.1Section 5 have been satisfied on the date hereof, each Lender that has signed this by the funding of the Second Amendment Term B Loans, the Administrative Agent and the Second Amendment Term B Lenders shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior or the Second Amendment Term B Lenders, as the case may be. Notwithstanding any other provisions of this Amendment to the proposed Amendment Effective Date specifying its objection thereto and contrary, the Administrative Agent hereby agrees may appoint a fronting lender (the “Fronting Lender”) to promptly provide Borrower with act as the sole Additional Replacement Term Lender and/or the sole Second Amendment Incremental Term B Lender for purposes of facilitating funding on the Amendment Effective Date. Accordingly, any Lender Addendum (Additional Replacement Term Lender) submitted by or on behalf of an Additional Replacement Term Lender and/or any counterpart signature page to this Amendment submitted by or on behalf of a copy of any such notice received Second Amendment Incremental Term B Lender, in each case other than the Fronting Lender, will be deemed ineffective unless accepted by the Administrative AgentSecond Amendment Lead Arranger in its sole discretion.
Appears in 1 contract
Amendment Effective Date. This Amendment The obligations of the Lenders, the Issuing Bank and the Administrative Agent under this Agreement shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedentconditions:
(a) The Administrative Agent’s receipt Agent shall have received a favorable written opinion dated as of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (orof Mayer, in Brown, ▇▇▇▇ & Maw LLP, special counsel for the case of certificates of governmental officialsLoan Parties, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:, and Holdings, the Borrower and the Subsidiaries hereby request such counsel to deliver such opinion.
(b) The Administrative Agent shall have received (i) executed counterparts a copy of this Amendmentthe certificate or articles of incorporation or other formation documents, sufficient in number for distribution 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, and a certificate as to the Administrative Agentgood standing of each Loan Party as of a recent date, each Lender and Borrower;
from such Secretary of State; (ii) if so requested within three Business Days prior to a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to in the case of the Borrower, addressed to that attached thereto is a true and complete copy of resolutions duly adopted by the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer Board of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) Directors of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with Borrower authorizing the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall party, the borrowings hereunder, and that such resolutions have not been obtained modified, rescinded or amended and shall be are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer of the Borrower executing any Loan Document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary of the Borrower executing the certificate pursuant to (ii) above.
(c) There The Administrative Agent shall not have occurred during the period from December 31received a certificate, 2016 through and including dated the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in and signed by a Financial Officer of the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened confirming compliance with the conditions precedent set forth in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any paragraphs (b) and (c) of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse EffectSection 4.01.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 The Administrative Agent shall have received notice from such Lender prior (i) this Agreement, executed and delivered by a duly authorized officer of each of Holdings and the Borrower and (ii) an Affirmation and Consent to the proposed Amendment Effective Date specifying its objection thereto Guarantee and Collateral Agreement, executed and delivered by a duly authorized officer of each of Holdings, the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentand each Subsidiary Guarantor.
Appears in 1 contract
Amendment Effective Date. This Amendment (a) the Agent shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction have received each of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (ordocuments, in the each case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts hereof executed counterparts of this Amendmentby each Borrower, sufficient in number for distribution each Parent Guarantor, the Agent and each Revolving Credit Lender identified on Annex I to the Administrative Agent, each Lender Credit Agreement (after giving effect to this First Amendment) and Borrowerthe Majority Term Loan Lenders;
(ii) if so requested within three Business Days to the extent necessary in connection with any reallocation of the Revolving Credit Commitments or Term Loan Outstandings, (A) replacement Revolving Credit Notes or Term Notes, executed by the applicable Borrower and in substantially the form of Exhibit I or Exhibit M, as the case may be and (B) any necessary --------- --------- assignment agreements relating to such reallocation;
(iii) a certificate of the Secretary or Assistant Secretary of each Credit Party certifying (A) the resolutions of the Board of Directors of such Credit Party authorizing, to the extent applicable, the issuance or guaranty of the Senior Subordinated Notes and the execution, delivery and performance of this First Amendment, (B) the names, incumbency and signatures of the officers of such Credit Party authorized to execute, deliver and perform the Credit Documents (including any officers which may be executing Credit Documents in connection with an Acquisition) and (C) the accuracy and completeness of the Governing Documents delivered to the Agent, the Issuing Banks and the Lenders prior to the Amendment Effective Date, a Note executed by Borrower in favor attaching thereto any and all amendments and modifications of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized Governing Documents not previously delivered to act as a Responsible Officer in connection with this Amendment and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a partysuch parties;
(iv) such documents a certificate of the chief executive officer or a Financial Officer of each Credit Party executed and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities delivered on behalf of such jurisdictionCredit Party certifying that all conditions precedent to the effectiveness of this First Amendment (other than conditions within the control of the Agent and the Lenders) have been met (or, concurrently with the Amendment Effective Date, will be met), all representations and warranties made in this First Amendment are true and correct and (after giving effect to this First Amendment) no Default or Event of Default has occurred and is continuing;
(v) favorable opinions a Solvency Certificate for the Credit Parties, on a combined basis, executed by a Financial Officer of each Credit Party , giving effect to this First Amendment and the issuance and guaranty of the Senior Subordinated Notes;
(Avi) certified copies of the Senior Subordinated Note Indenture and the offering memorandum and prospectus for the Senior Subordinated Notes;
(vii) a funds flow memorandum certified by a Financial Officer of each Credit Party with respect to the proceeds of the Senior Subordinated Notes and the payment of transaction costs related thereto;
(viii) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrowerthe Credit Parties, addressed with respect to this First Amendment, non- contravention of the Administrative Credit Agreement, as amended by this First Amendment, with the Senior Subordinated Note Indenture and such other matters as the Agent and each Lendermay reasonably request;
(viix) a certificate signed by a Responsible Officer of Borrower certifying (A) that to the conditions specified extent similar opinions are delivered in Section 4.02(a) connection with the issuance and (b) guaranty of the Senior Subordinated Notes, opinions of Texas, Mississippi and Alabama counsel to the Credit Agreement have been satisfiedParties, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be with respect to this First Amendment and such other matters as the Agent may reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratingsrequest; and
(viix) such other assurances, certificates, documents, consents or opinions additional documentation as the Administrative Agent may reasonably requirerequest.
(b) All consentsRSC shall have issued the Senior Subordinated Notes in an aggregate principal amount of at least $150,000,000, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower net proceeds of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effectpaid to the Agent, for the benefit of the Revolving Credit Lenders, for application on the outstanding principal amount of the Revolving Loans.
(c) There No law, regulation, order, judgment or decree of any Governmental Authority shall, and the Agent shall not have occurred during received any notice that litigation is pending or threatened which is likely to, enjoin, prohibit or restrain the period from December 31issuance of the Senior Subordinated Notes or the transactions contemplated by this First Amendment, 2016 through and including the Amendment Effective Date (i) any event except for such laws, regulations, orders or condition decrees, or pending or threatened litigation that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, aggregate could not reasonably be expected to have result in a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront feesAll Fees, and any expenses incurred by all Expenses as to which the Lead Arranger and Administrative AgentCredit Parties have received an invoice, in each case, as agreed in writing by Borrower, required to be paid case which are payable on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (RSC Duval Inc)
Amendment Effective Date. This Amendment The obligations of the Lenders to make Loans hereunder shall not become effective as of until the date first written above (on which the “Amendment Effective Date”), upon following conditions precedent having been complied with to the satisfaction of or waived in writing by the following conditions precedent:
Administrative Agent (awith the consent of all Lenders) The Administrative Agent’s receipt of the following(each document, each of which shall be originalsinstrument, telecopies certificate, opinion or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each paper referred to below to be in form and substance reasonably satisfactory to the Administrative Agent:Agent and, unless otherwise specified, to be dated the Amendment Effective Date):
(a) The following documents shall have been duly authorized, executed and delivered by the respective party or parties thereto and shall be in full force and effect on the Amendment Effective Date and an executed copy of each shall have been delivered to the Administrative Agent and each Lender (it being understood that that the due authorization, execution and delivery of the documents specified in clauses (v)-(ix) were satisfied on the Effective Date):
(i) executed counterparts this Agreement;
(ii) the Security Agreement;
(iii) the Guaranty;
(iv) the Intercreditor Agreement;
(v) the Lease and the Charter Agreement (including in each case all supplements, amendments, novations and letter agreements thereto, the chattel paper original, if any, of which to be delivered to the Security Trustee), accompanied by a certificate from an officer of the Borrower to the effect that the Lease and the Charter Agreement (together with such other instruments as may accompany it) is a true and complete copy of documentation memorializing the leasing arrangements and associated understandings and agreements between the Lessee and the Borrower and its Affiliates;
(vi) the Class A-1 Loan Advance Account Agreement;
(vii) the Paying Agent Agreement;
(viii) the Class A-1 Loan Advance Receipt to be issued to each Class A-1 Lender, duly completed (the original of each to be delivered to such Class A-1 Lender); and
(ix) the Maintenance Services Agreement.
(b) The Administrative Agent and each Lender shall have received the following (it being understood that that the conditions precedent in respect of the documents specified in clauses (iv)-(vii) and, to the extent relating to the Paying Agent, the Loan Account Bank, the Lessee and the Manufacturer, clause (viii), were satisfied on the Effective Date):
(i) a copy of the organizational documents of the Borrower, and other evidence authorizing execution, delivery and performance by the Borrower of this AmendmentAgreement and each other Related Document to which the Borrower is or will be a party, sufficient in number for distribution to each case certified by the Administrative Agent, each Lender Secretary or an Assistant Secretary of the Borrower and confirmed by another officer of the Borrower;
(ii) if so requested within three Business Days prior to a copy of the Amendment Effective Date, a Note executed by Borrower in favor organizational documents of each requesting LenderGuarantor, and other evidence authorizing execution, delivery and performance by such Guarantor of each Related Document to which such Guarantor is or will be a party, in each case certified by the Secretary or an Assistant Secretary of such Guarantor and confirmed by another officer of such Guarantor;
(iii) such certificates a copy of resolutions or other action, incumbency certificates and/or other certificates the organizational documents of Responsible Officers of Borrower 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 Security Trustee, and other Loan Documents delivered pursuant to evidence authorizing execution, delivery and performance by the Administrative Agent or the Security Trustee, as the case may be, of this § 3.1 Agreement and each other Related Document to which Borrower the Administrative Agent or the Security Trustee, as the case may be, is or will be a party, in each case certified by the Secretary or an Assistant Secretary of the Administrative Agent or the Security Trustee, as the case may be;
(iv) such a copy of the organizational documents and certifications as of the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formedPaying Agent, and that Borrower is validly existing other evidence authorizing execution, delivery and in good standing in its jurisdiction of organization, issued performance by the appropriate authorities Paying Agent of such jurisdictionthe Paying Agent Agreement, the Class A-1 Loan Advance Account Agreement and each other Related Document to which the Paying Agent is or will be a party, in each case certified by the Secretary or an Assistant Secretary of the Paying Agent;
(v) favorable opinions a copy of the organizational documents of the Loan Account Bank, and other evidence authorizing execution, delivery and performance by the Loan Account Bank of the Class A-1 Loan Advance Account Agreement and each other Related Document to which the Loan Account Bank is or will be a party, in each case certified by the Secretary or an Assistant Secretary of the Loan Account Bank;
(vi) evidence authorizing execution, delivery and performance by the Lessee of each Related Document to which the Lessee is or will be a party, in each case certified by the Secretary or an Assistant Secretary the Lessee;
(vii) evidence authorizing execution, delivery and performance by the Manufacturer of each Related Document to which the Manufacturer is or will be a party, in each case certified by the Secretary or an Assistant Secretary the Manufacturer;
(viii) a copy of an incumbency certificate of or in respect of the people authorized to execute documents on behalf of the Borrower, each Guarantor, the Security Trustee, the Paying Agent, the Loan Account Bank, the Lessee and the Manufacturer, in each case as to the person or persons authorized to execute and deliver the Related Documents to which such Person is a party, and the specimen signature of such person or persons;
(A) ▇▇▇▇a good standing certificate of each of the Borrower and the Lessee issued by the Delaware Secretary of State and (B) if applicable, a good standing certificate of each Guarantor issued by the Secretary of State or other relevant official in such Guarantor’s jurisdiction of incorporation or formation; and
(x) such other documents and evidence with respect to the Borrower, the Guarantors or the Security Trustee, the Paying Agent, the Loan Account Bank, the Lessee or the Manufacturer as any Lender or its counsel may reasonably request in order to establish the consummation of the transactions contemplated by this Agreement and the other Related Documents, the taking of all corporate proceedings in connection therewith, compliance with the conditions herein or therein set forth and compliance with any money laundering informational requirements any Lender may have.
(c) Each of the Administrative Agent, the Lenders and the Security Trustee shall have received one or more opinions addressed to each of them from, in each case in form and substance reasonably satisfactory to the Administrative Agent (it being understood that that the conditions precedent in respect of the document specified in clause (iii) was satisfied on the Effective Date):
(i) K▇▇▇ ▇▇▇▇▇▇▇ LLP, Esq., General Counsel for Borrower, and special New York counsel to the Loan Parties;
(ii) in-house or special counsel to each Loan Party (in each case in the jurisdiction of incorporation or formation of such Loan Party); and
(iii) P▇▇▇ B) ▇▇▇▇ G▇▇ & L▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.P.C., special Texas and New York counsel to the Paying Agent and the Loan Account Bank; in each case covering such matters as the Administrative Agent or any Lender may reasonably request.
(d) The Borrower and the Guarantors shall have delivered to Administrative Agent and each Lender any document reasonably requested by a Lender in order for such Lender to satisfy any “know your customer” requirements.
(e) [Intentionally omitted].
(f) All approvals and consents of any trustee or holder of their indebtedness or obligation of the Borrower, the Guarantors or any of their Affiliates which are required in connection with any of the transactions contemplated by this Agreement and the other Related Documents shall have been duly obtained.
(g) All appropriate action required to have been taken by any governmental or political agency, subdivision or instrumentality of the United States on or prior to the Amendment Effective Date in connection with the transactions contemplated by this Agreement and the other Related Documents shall have been taken, and all orders, permits, waivers, authorizations, exemptions and approvals of such entities required to be in effect on the Amendment Effective Date in connection with the transactions contemplated by this Agreement and the other Related Documents shall have been issued, and all such orders, permits, waivers, authorizations, exemptions and approvals shall be in full force and effect on the Amendment Effective Date.
(h) The Administrative Agent and the Lenders shall have received evidence of the establishment of the Class A-1 Loan Advance Account (it being understood that that the condition precedent specified in this clause (h) was satisfied on the Effective Date).
(i) The Administrative Agent and each Lender shall have received updated certificates of insurance and insurance broker letters from the applicable insurance brokers as to the due compliance with the terms of the Lease, the Lessee Consent and Section 5.06 in respect of each Aircraft previously financed as of the Amendment Effective Date, including naming all of the Lenders as additional insureds and naming the Security Trustee as the sole loss payee.
(j) The Administrative Agent shall have received an opinion of special FAA counsel in Oklahoma City, Oklahoma, addressed to the Administrative Agent, each Lender, the Security Trustee and the Borrower, as to the due recording of the Security Agreement, and registration with the International Registry of the international interests of the Security Agreement, relating to each Aircraft financed under this Agreement as of the Amendment Effective Date and the lack of filing of any intervening documents with respect to such Aircraft and confirming that no further filing, supplement or instrument is needed for the obligations in respect of the Initial Class B Loans to be secured by such Aircraft, in form and substance satisfactory to the Administrative Agent and each Lender;.
(vik) a certificate signed by a Responsible Officer of The Borrower certifying (A) shall have paid such fees that are due and payable as the conditions specified in Section 4.02(a) and (b) of the Credit Agreement Borrower shall have been satisfiedagreed to pay to any Lender, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consentsor the Security Trustee in connection herewith, licenses including the reasonable fees and approvals required expenses of counsel, in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effecttransactions contemplated hereby.
(cl) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, The Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Class B Lender that has signed this Amendment 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 notice from such Lender prior the Borrowing Request in respect of the initial Class B Loans to be made pursuant to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy first sentence of any such notice received by the Administrative AgentSection 2.01(c).
Appears in 1 contract
Sources: Secured Credit Agreement (Aspirational Consumer Lifestyle Corp.)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by each Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § §3.1 to which Borrower such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, each Loan Party and General Partner and GP LLC are is duly organized or formed, and that each Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrowerof the Company and PAA, and (B) Fulbright & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrowereach Borrower and PAA, and (C) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, special Canadian counsel to PMCULC, addressed to the Administrative Agent and each Lender;
(viA) the audited consolidated balance sheet of PAA and its Subsidiaries for the fiscal years ended December 31, 2010, December 31, 2011 and December 31, 2012, and the related consolidated statements of income or operations and cash flows for such fiscal years and partners’ capital of PAA and its Subsidiaries, including the notes thereto, and (B) the pro forma financial projections and forecasts of PAA and its Subsidiaries prepared by or at the direction of PAA and delivered by the Company to the Administrative Agent for the second half of the fiscal year ending December 31, 2013 and for the fiscal years ending December 31, 2014 and December 31, 2015;
(vii) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a), (b) and (bd) of the Credit Agreement have been satisfiedsatisfied (and in the case of said Section 4.02(d), if no Request for Credit Extension is made on the Amendment Effective Date, then determined in respect to then Outstanding Amount of Obligations, if any, of each Borrower), (B) the projections and forecasts described in §3.1(a)(vi)(B) of this Amendment were prepared in good faith upon assumptions deemed reasonable by PAA at the time made, (C) that there has been no event or circumstance since December 31, 2016 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect, and (CD) the current PAA Debt RatingsRating; and
(viiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2012 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of Borrowerthe Company, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against PAA, any Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead ArrangerArrangers, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by of the Lead Arranger Arrangers and Administrative Agent, in each case, as agreed in writing by Borrowerthe Company, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower The Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower the Company with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of ) on which the following conditions precedent:have been satisfied (or waived pursuant to Section 10.1 of the Credit Agreement):
(a) The the Administrative Agent’s receipt of the followingAgent shall have received counterparts to this Amendment, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly duly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender the Required Lenders and Borrowerthe Issuing Lender;
(iib) if so requested within three Business Days Amendment No. 1 to the Second Lien Credit Agreement among the Borrower, the several lenders from time to time parties thereto, Citizens Bank, N.A., as administrative agent and the other agents parties thereto shall have become effective and the Administrative Agent shall have received an executed copy thereof;
(c) The Borrower shall have paid or caused to be paid all other fees and expenses required to be paid or reimbursed in connection with this Amendment on or prior to the date hereof;
(d) The Administrative Agent shall have received, for the account of each Lender that provides its consent to the Amendment on or prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized an amendment fee equal to act as a Responsible Officer in connection with this Amendment and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) 0.25% of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect aggregate amount of Revolving Commitments and (C) the current Debt Ratings; and
(vii) aggregate principal amount of Term Loans held by such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including approving Lender on the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paidDate.
(e) Borrower (i) all of the representations and warranties made by any Loan Party in the Loan Documents shall be true and correct in all material respects and (ii) no Default or Event of Default shall have paid all reasonable feesoccurred and be continuing at the time of, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or after giving effect to, this Amendment on the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 ; and
(f) the Administrative Agent shall have received notice a duly executed officer’s certificate from such Lender prior the Borrower certifying as to the proposed Amendment Effective Date specifying its objection thereto and satisfaction of the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentmatters set forth in condition (e) above.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender Lender, each Borrower and BorrowerPAA;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower such Loan Party is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, each Loan Party and General Partner and GP LLC are is duly organized or formed, and that each Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(viv) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for BorrowerBorrowers and PAA, (B) Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, special Texas and New York counsel to Borrowers and PAA, and (BC) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇, special Texas and New York Canadian counsel to BorrowerPMCULC, addressed to the Administrative Agent and each Lender;
(viv) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a4.02 (a), (b) and (bd) of the Credit Agreement have been satisfiedsatisfied (and in the case of said Section 4.02(d), if no Request for Credit Extension is made on the Amendment Effective Date, then determined in respect to then Outstanding Amount of Obligations, if any, of each Borrower), (B) that there has been no event or circumstance since December 31, 2016 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect, and (C) the current PAA Debt Ratings; and
(viivi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2015 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of BorrowerPAA, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower PAA or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement
Amendment Effective Date. This Amendment shall become be effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of provided the following conditions precedentprecedent are satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies originals or other electronic copies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicableexecuted, each dated the same date as this Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in date of the case of financial statements, the date or period of such financial statementsAmendment) and each in form and substance reasonably satisfactory to the Administrative AgentAgent and its legal counsel:
(i) executed counterparts of this AmendmentAmendment and all other documents and instruments requested by Agent, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower amended and restated Notes in favor of each requesting Increasing Lender in form acceptable to Agent and the Increasing Lenders, to reflect the Revolving Commitment Increase as to each Increasing Lender;,
(iii) a corporate certificate with resolutions in the form required by Agent,
(iv) the legal opinion required by Section 2.04(a)(v) of the Credit Agreement,
(v) such other certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Authorized Officers of Borrower each Credit Party as the Administrative Agent Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Authorized Officer thereof authorized to act as a Responsible an Authorized Officer in connection with this Amendment and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower such Credit Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;; and
(vi) a certificate signed by a Responsible Officer fully executed originals of Borrower certifying (the Ratification of and Amendment to Security Agreement and Release and Ratification of and Amendment to Subsidiary Guaranty, in the forms set forth on Schedules “1-A) that the conditions specified in Section 4.02(a) ” and “1-B”, respectively, attached hereto, for each party thereto;
(b) Agent’s receipt of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or consents, and opinions as the Administrative Agent reasonably may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.; and
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, Unless waived by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges expenses and disbursements of any law firm or other external counsel to the Administrative for Agent to the extent invoiced prior to the Amendment Effective Date. For purposes date hereof, plus such additional amounts of determining compliance with the conditions specified in this §3.1such fees, each Lender that has signed this Amendment expenses and disbursements as shall be deemed to have consented to, approved or accepted constitute its reasonable estimate thereof incurred or to be satisfied with, each document or other matter required thereunder incurred by it through the closing proceedings as to be consented to or approved by or acceptable or satisfactory to this Amendment (provided that such estimate shall not thereafter preclude a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto final settling of accounts between Borrower and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent).
Appears in 1 contract
Sources: Credit Agreement (Matrix Service Co)
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (such date, the “Third Amendment Effective Date”), upon the satisfaction of ) on which the following conditions precedenthave been satisfied (or waived by the Administrative Agent):
a. The Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of (i) the Borrower, (ii) the Administrative Agent and (iii) the Lenders;
b. The Project Everest Acquisition Conditions shall have been satisfied;
c. The Administrative Agent shall have also received:
(a) The i. customary written opinions, in form and substance satisfactory to the Administrative Agent’s receipt , of the following(1) White & Case LLP and (2) G▇▇▇▇▇▇▇, H▇▇▇▇▇▇▇ & C▇▇▇▇▇ P.C., each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly as special counsel to the Credit Parties;
ii. a certificate duly executed by a Responsible an Authorized Officer of the BorrowerBorrower as to the Solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Project Everest Acquisition;
iii. a certificate of an Authorized Officer of each Credit Party dated the Third Amendment Effective Date and certifying:
A. that attached thereto is a true and complete copy of each Organizational Document of such Credit Party (and with respect to any articles of incorporation or formation (or equivalent document), if as applicable, certified to be true and complete as of a recent date prior to the Third Amendment Effective Date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization) and certified by a secretary or other Authorized Officer of such Credit Party to be true and correct as of the Third Amendment Effective Date;
B. that attached thereto is a true and complete copy of resolutions of such Credit Party authorizing the execution, delivery and performance of this Amendment and any other document delivered in connection herewith on the Third Amendment Effective Date;
C. as to the incumbency and specimen signature of each Authorized Officer executing this Amendment (together with a certificate of another officer as to the incumbency and specimen signature of the Authorized Officer executing the certificate pursuant to this Section 3(c)(iii)); and
D. that attached thereto is a good standing certificate, certificate of status or analogous certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of incorporation or organization of formation, each dated a recent date prior to the Third Amendment Effective Date;
iv. if requested by a Project Everest Incremental Revolving Lender, the Administrative Agent and such Project Everest Incremental Revolving Lender shall have received a duly-executed amended and restated Revolving Credit Note;
v. a certificate duly executed by an Authorized Officer of the Borrower certifying as to the matters set forth in paragraph (b) of this Section 3;
vi. a Notice of Loan with respect to the Project Everest Incremental Revolving Loans and any other Revolving Loans to be borrowed on the Third Amendment Effective Date (orwhich such other Revolving Loans under the Existing Credit Agreement not to exceed $150,000,000);
vii. the results of a recent search, by a Person satisfactory to the Administrative Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Credit Party in the case appropriate jurisdictions, together with copies of certificates all such filings disclosed by such search;
viii. payoff and release documentation relating to all outstanding indebtedness of governmental officialsEnercon Technologies Ltd., a recent date before company organized under the Amendment Effective Date and in laws of the case State of financial statementsIsrael, required to be paid off pursuant to the date or period terms of such financial statements) and each the Project Everest Acquisition Agreement, in form and substance reasonably satisfactory to the Administrative Agent:; and
d. The Administrative Agent and the Project Everest Incremental Revolving Lenders (ior their affiliates, as applicable) executed counterparts shall have received payment of this Amendment, sufficient in number for distribution all fees required to be paid pursuant to the Administrative Agentfee letter, each Lender and Borrower;
(ii) if so requested within three Business Days prior to dated as of the Second Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 reasonable and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any documented out-of-pocket expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced in reasonable detail at least one business day prior to the Third Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of on the date first written above (the “Amendment Effective Date”), upon the satisfaction of "AMENDMENT EFFECTIVE DATE") on which the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agentare satisfied:
(i) executed counterparts of The Administrative Agent shall have received (i) this Amendment, sufficient in number for distribution to executed and delivered by the Administrative Agent, the Borrower and the Required ESD Banks (it being understood that any amendment contained herein which requires consent of each Lender Existing Bank shall be enforceable against such Existing Bank upon delivery of this Amendment by the Administrative Agent, the Borrower and the Existing Bank), (ii) the L/C Agreement, executed and delivered by the Administrative Agent, the Borrower and the banks parties thereto, (iii) the Guarantee and Collateral Agreement, executed and delivered by the Borrower and each Subsidiary Guarantor, (iv) an Acknowledgement and Consent in the form attached to the Guarantee and Collateral Agreement, executed and delivered by each Issuer (as defined therein), if any, that is not a Credit Party and (v) the Collateral Sharing Agreement, executed and delivered by the Collateral Agent and the Borrower;.
(ii) if so requested within three Business Days prior All governmental and third party approvals necessary in connection with the Transactions shall have been obtained and be in full force and effect.
(iii) The Banks and the Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Amendment Effective Date.
(iv) Administrative Agent shall have received a certificate of each Credit Party, dated the Amendment Effective Date, a Note executed by Borrower substantially in favor the form of each requesting Lender;
(iii) such certificates of resolutions or other actionExhibit D, incumbency certificates and/or other certificates of Responsible Officers of Borrower as the Administrative Agent may reasonably require evidencing the identity, authority with appropriate insertions and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;attachments.
(v) favorable opinions The Administrative Agent shall have received the following executed legal opinions:
i. the legal opinion of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇Sidley Austin LLP, Esq., General Counsel for counsel to the Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or substantially in the aggregate, a Material Adverse Effect and (C) the current Debt Ratingsform of Exhibit E-1; and
(vii) ii. the legal opinion of in-house counsel to the Borrower, substantially in the form of Exhibit E-2. Each such legal opinion shall cover such other assurances, certificates, documents, consents or opinions matters incident to the Transactions as the Administrative Agent may reasonably require.
(bvi) All consentsTo the extent not already held by the Collateral Agent, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party Collateral Agent shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending orreceived, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred extent required by the Lead Arranger Guarantee and Administrative AgentCollateral Agreement, the certificates representing the shares of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in each caseblank by a duly authorized officer of the pledgor thereof; PROVIDED, as agreed in writing by Borrower, that no such certificates shall be required to be paid delivered on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes If the closing of determining compliance the Alcatel Merger shall not occur by or before March 31, 2007, then the Borrower shall be required to satisfy the requirements of this clause (vi) by or before April 30, 2007.
(vii) Each document (including any Uniform Commercial Code financing statement) required by the Guarantee and Collateral Agreement or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 6.02 of the External Sharing Debt Agreement), shall be in proper form for filing, registration or recordation; PROVIDED, that any additional filing with the conditions specified in this §3.1U.S. Patent Office shall not be required to filed, each Lender that has signed this registered or recorded on the Amendment Effective Date. If the closing of the Alcatel Merger shall not occur by or before March 31, 2007, then the Borrower shall be deemed required to have consented to, approved or accepted or satisfy the requirements of this clause (vii) with respect to be satisfied with, each document or other matter required thereunder to be consented to or approved any additional filing with the U.S. Patent Office by or acceptable or satisfactory to a Lender unless the Administrative before April 30, 2007.
(viii) The Collateral Agent shall have received notice from such Lender prior to insurance certificates satisfying the proposed Amendment Effective Date specifying its objection thereto requirements of Section 5.2 of the Guarantee and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative AgentCollateral Agreement.
Appears in 1 contract
Sources: External Sharing Debt Agreement (Lucent Technologies Inc)
Amendment Effective Date. This Amendment The amendment of the Existing Restated Credit Agreement in the form of this Agreement shall not become effective as of until the date first written above (the “Amendment Effective Date”), upon the satisfaction on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of the following, each Amendment Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which shall be originals, telecopies may include telecopy or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by transmission of a Responsible Officer signed signature page of the BorrowerAmendment Agreement) that such party has signed a counterpart of the Amendment Agreement.
(b) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, if existence and, to the extent applicable, each good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date (or, in and signed by the case of certificates of governmental officialsPresident, a recent date before Vice President or a Financial Officer of each Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(d) The Existing Parent Credit Agreement shall have been amended and restated as the Parent Credit Agreement.
(e) The Administrative Agent shall have received all interest, fees and other amounts due and payable or accrued on or prior to the Amendment Effective Date under this Agreement or the Existing Restated Credit Agreement, including, to the extent invoiced at least one Business Day prior to the Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower under this Agreement or any other Loan Document.
(f) Each Tranche B Lender (as defined in the Existing Parent Credit Agreement) shall have received (or, substantially simultaneously with the funding of the term loans on the Amendment Effective Date pursuant to the Parent Credit Agreement, shall receive) payment in full of the principal of and interest accrued on each Tranche B Term Loan (as defined in the Existing Parent Credit Agreement) held by it and all other amounts owing to it or accrued for its account under the Existing Parent Credit Agreement, and all interest, fees and other amounts accrued or owing under each of the Existing Parent Credit Agreement and the Existing Restated Credit Agreement, including to the extent invoiced at least one Business Day prior to the Amendment Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrowers thereunder, shall have been (or, substantially simultaneously with the funding of the term loans on the Amendment Effective Date pursuant to the Parent Credit Agreement, shall be) paid in full.
(g) All consents and approvals required to be obtained from any Governmental Authority or other Person in connection with the execution of this Agreement shall have been obtained.
(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 each of (i) Davis Polk & Wardwell, New York counsel for the Borrowers and the Subsidiaries, sub▇▇▇▇▇▇▇▇▇▇ in ▇▇▇ ▇▇▇m of Exhibit D-1, (ii) Jones, Walker, Waechter, Poitevant, Carrère & Denègre, L.L.P., U.S. counsel for the Borrowers and ▇▇▇ ▇▇▇▇idiaries, substantially ▇▇ ▇▇▇ form of Exhibit D-2, (iii) local counsel in each jurisdiction where a Subsidiary Guarantor, a Subsidiary Grantor (as defined in the Collateral Agreement) or a Permitted Pledgee the Equity Interests in which are being pledged pursuant to the Collateral Agreement or any Foreign Pledge Agreement is organized, in each case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:, (iv) Indonesian counsel for the Borrowers, substantially in the form of Exhibit D-3, and (v) Indonesian counsel for the Lenders, substantially in the form of Exhibit D-4.
(i) executed counterparts of this Amendment, sufficient in number for distribution The Collateral and Guarantee Requirement shall have been satisfied.
(j) The FI Trustee shall have received opinions to the effect that it does not have to qualify to do business in Louisiana or Indonesia by virtue of the Loan Documents or the activities contemplated thereby. The Administrative Agent, each Lender Agent shall promptly notify the Borrowers and Borrower;
(ii) if so requested within three Business Days prior to the Lenders of the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) and such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and notice shall be in full force conclusive and effectbinding.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower such Loan Party is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrowereach Loan Party, General Partner and GP LLC are is duly organized or formed, and that each Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(viv) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for BorrowerBorrowers, (B) Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, special Texas and New York counsel to Borrowers, and (BC) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇, special Texas and New York Canadian counsel to BorrowerPMCULC, addressed to the Administrative Agent and each Lender;
(viv) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect, and (C) the current Debt Ratings; and
(viivi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2015 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of Borrowerthe Company, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower the Company or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower such Loan Party is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrowereach Loan Party, General Partner and GP LLC are is duly organized or formed, and that each Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(viv) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for BorrowerBorrowers, (B) Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, special Texas and New York counsel to Borrowers, and (BC) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇, special Texas and New York Canadian counsel to BorrowerPMCULC, addressed to the Administrative Agent and each Lender;
(viv) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a4.02 (a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect, and (C) the current Debt Ratings; and
(viivi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2015 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of Borrowerthe Company, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower the Company or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedentshall have been satisfied:
(ai) The the Administrative Agent’s receipt Agent shall have received a counterpart signature page of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly this Amendment duly executed by a Responsible Officer each of the Borrower, if applicableeach Guarantor, each Refinancing Term Lender, each Refinancing Revolving Lender and other Lenders (together with the Refinancing Term Lenders and Refinancing Revolving Lenders) sufficient to constitute, collectively, the Requisite Lenders;
(ii) the Administrative Agent and Lenders and their respective counsel shall have received an original executed copy of the favorable written opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Credit Parties, dated the Amendment Effective Date (or, in the case as of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:, addressed to the Administrative Agent and the Lenders as of the Amendment Effective Date after giving effect to this Amendment (and each Credit Party hereby instructs such counsel to deliver such opinion to the Administrative Agent and such Lenders);
(iii) the Administrative Agent shall have received (i) executed counterparts a copy of this Amendmenteach Organizational Document of each Credit Party certified, sufficient in number for distribution to the extent applicable, as of a recent date by the applicable Governmental Authority, or, if reasonably acceptable to the Administrative Agent, each Lender a certification by an Authorized Officer that the applicable Organizational Documents delivered in connection with the Closing Date, remain in full force and Borrower;
effect and have not been amended, modified, revoked or rescinded since the Closing Date, as applicable, (ii) if so requested within three Business Days prior signature and incumbency certificates of the officers or directors of each Credit Party executing this Amendment, substantially in the form of the closing certificates delivered on the Closing Date, (iii) resolutions of the Board of Directors or similar governing body of each Credit Party approving and, to the extent required in any jurisdiction, resolutions of the meeting of shareholders of a Credit Party, in each case authorizing the execution, delivery and performance of this Amendment, certified as of the Amendment Effective DateDate by a director, its secretary, an assistant secretary as being in full force and effect without modification or amendment and (iv) a Note executed by Borrower good standing certificate (to the extent such concept is applicable in favor the relevant jurisdiction) from the applicable Governmental Authority of each requesting Lender;
(iii) such certificates Credit Party’s jurisdiction of resolutions incorporation, organization or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a partyformation;
(iv) the representations and warranties of the Credit Parties set forth in Section 4 hereof shall be true and correct in all material respects as of the Amendment Effective Date (except to the extent such documents representations and certifications warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date), and the Administrative Agent may reasonably require to evidence that shall have received a certificate, dated as of the Amendment Effective Date of the Borrower, General Partner confirming the accuracy thereof, which shall be in form and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdictionsubstance reasonably satisfactory to Administrative Agent;
(v) favorable opinions of the Borrower shall have paid all fees and other amounts due and payable to GS Bank, ▇.▇. ▇▇▇▇▇▇ Securities LLC (A) “JPMS”), Citigroup Global Markets Inc. (“CGMI”), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇ Incorporated (“MLPFS”) as joint lead arrangers, special Texas bookrunners and New York counsel to Borrowerco-syndication agent (in such capacities, addressed to the “Lead Arrangers”), Fifth Third Bank as documentation agent and the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any LenderAmendment, including any arrangement fees, agency fees reimbursement or payment of reasonable costs and upfront fees, and any expenses actually incurred by the Lead Arranger Arrangers or the Administrative Agent in connection with this Amendment, including the reasonable fees, expenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced that Borrower has received a reasonably detailed invoice for such costs and expenses prior to the Amendment Effective Date. For purposes of determining compliance ;
(vi) concurrently with the conditions specified making of the Refinancing Tranche A Term Loans and making the Refinancing Revolving Commitments available hereunder, (a) the entire aggregate principal amount of the Existing Tranche A Term Loans and (b) all accrued interest, fees and other amounts (including any amounts due pursuant to Section 2.18 of the Credit Agreement) accrued prior to the Amendment Effective Date in connection therewith and in connection with the Existing Revolving Commitments shall have been paid (or, in the case of principal, deemed paid pursuant to this §3.1Amendment) in full and all Interest Periods in respect of thereof shall have been terminated; and
(vii) the Borrower shall have delivered a Funding Notice with respect to the Refinancing Tranche A Term Loans, each Lender that has signed this Amendment shall be deemed notice of prepayment with respect to have consented to, approved or accepted or the Existing Tranche A Term Loans and notice of termination with respect 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 Existing Revolving Commitments.
(b) The Administrative Agent shall have received notice from such Lender prior to notify the proposed Borrower and the Lenders of the Amendment Effective Date specifying its objection thereto and such notice shall be conclusive and binding. Notwithstanding the Administrative Agent hereby agrees foregoing, the Amendment Effective Date shall not occur if each of the conditions set forth or referred to promptly provide Borrower in this Section 5 has not been satisfied or waived in accordance with a copy Section 10.05 of the Credit Agreement at or prior to 5:00 p.m., New York City time, on ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇ being understood that any such failure of the Amendment Effective Date to occur by such date will not affect any rights or obligations of any such notice received by Person under the Administrative Agentexisting Credit Agreement).
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, Borrower and (B) ▇Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ L.L.P.US LLP, special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a4.02 (a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2015 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: 364 Day Credit Agreement
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “First Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall have been satisfied (or waived by the 2018 Incremental Term Lenders and the Successor Administrative Agent):
(a) The Successor Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by each Loan Party, the Existing Administrative Agent’s receipt of , the followingSuccessor Administrative Agent, each of which 2018 Incremental Term Lender and the Lenders constituting the Required Lenders.
(b) The Successor Administrative Agent shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed have received a certificate signed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
Loan Party (i) executed counterparts attaching the articles of this Amendmentformation or other or formation documents of such Loan Party and the bylaws, sufficient operating agreement or comparable governing document of such Loan Party, in number for distribution each case, certified by an appropriate Governmental Authority, to the Administrative Agentextent applicable, each Lender and Borrower;
(ii) if so requested within three Business Days prior to certifying that attached thereto are the Amendment Effective Date, a Note executed by Borrower in favor resolutions of each requesting Lender;
the Board of Directors (iii) such certificates of resolutions or other actiongoverning body) of such Loan Party approving and authorizing the execution, incumbency certificates and/or other certificates delivery and performance of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 as being in full force and effect without modification or amendment as of the First Amendment Effective Date, (iii) attaching signature and incumbency certificates of the Responsible Officers of such Loan Party executing Loan Documents to which Borrower it is a party;
party and (iv) such documents and certifications as attaching the good standing certificates described in clause (d) below.
(c) The Successor Administrative Agent may reasonably require shall have received a certificate of good standing, existence or its equivalent with respect to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction each Loan Party certified as of organization, issued a recent date by the appropriate authorities Governmental Authorities of the state of incorporation or formation, as the case may be and to the extent such jurisdiction;concept exists.
(vd) favorable opinions of At least three (A3) Business Days prior to the First Amendment Effective Date, the Successor Administrative Agent and the 2018 Incremental Term Lenders shall have received all documentation and other information about the Loan Parties that shall have been reasonably requested in writing at least ten (10) Business Days prior to the First Amendment Effective Date and that the Successor Administrative Agent and the 2018 Incremental Term Lenders reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(e) The Successor Administrative Agent shall have received a written legal opinion reasonably satisfactory to it (addressed to the Existing Administrative Agent and each 2018 Incremental Term Lender party hereto and dated the First Amendment Effective Date) of
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Esq.New York counsel to the Loan Parties, General Counsel for Borrowerin form and substance reasonably satisfactory to the Successor Administrative Agent;
(ii) Stikeman Elliot LLP, Alberta, British Columbia, Ontario and Quebec counsel to the Loan Parties;
(Biii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇▇, special Texas New Brunswick, Nova Scotia and New York Newfoundland and Labrador counsel to Borrower, addressed to the Administrative Agent and each LenderLoan Parties;
(viiv) D’Arcy & Deacon LLP, Manitoba counsel to the Loan Parties; and
(v) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Saskatchewan counsel to the Loan Parties.
(f) All fees required to be paid on the First Amendment Effective Date pursuant to that certain Commitment Letter, dated as of April 22, 2018 (the “Commitment Letter”), among the Buyer, Citibank Global Markets Inc. and each other financial institution which signs or has signed a certificate signed joinder thereto or pursuant to the Fee Letter (as defined therein) and the reasonable out-of-pocket expenses required to be paid on the First Amendment Effective Date pursuant to the Commitment Letter, to the extent invoiced at least three (3) Business Days prior to the First Amendment Effective Date (except as otherwise reasonably agreed by the Borrower), shall, upon the initial borrowings under the 2018 Incremental Term Loans (as applicable), have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the 2018 Incremental Term Loans (as applicable)).
(g) The Existing Administrative Agent shall have received, for the account of each Existing Lender which executes this Amendment and submits to the Successor Administrative Agent a Responsible Officer signature page hereto on or prior to 5:00 pm (New York time) on May 8, 2018, a consent fee (the “Consent Fee”) in an amount equal to 0.25% of Borrower certifying (A) the aggregate principal amount of the Initial Term Loans held by such Lender immediately prior to the First Amendment Effective Date; provided that the conditions specified Consent Fee shall not be payable if the First Amendment Effective Date does not occur.
(h) The First Amendment Transaction shall have been consummated, or substantially simultaneously with the initial borrowings under the 2018 Incremental Term Loans, shall be consummated, in Section 4.02(a) and (b) all material respects in accordance with the terms of the Credit First Amendment Transaction Agreement have been satisfied(as applicable), after giving effect to any modifications, amendments, consents or waivers by you thereto, other than those modifications, amendments, consents or waivers that are materially adverse to the interests of the 2018 Incremental Term Lenders, unless consented to in writing by the 2018 Incremental Term Lenders (Bsuch consent not to be unreasonably withheld, delayed or conditioned).
(i) that there has been no event or circumstance since Since December 31, 2016 that 2017 there has had not been a Material Adverse Effect (as such term is defined in the First Amendment Transaction Agreement as in effect on April 22, 2018) and no fact, circumstance, condition, occurrence or could event exists or has occurred which has had, or would reasonably be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the First Amendment Transaction Agreement as in effect on April 22, 2018).
(j) The Equity Contribution (as defined in the Commitment Letter) shall have been made, or substantially simultaneously with the initial borrowings under the 2018 Incremental Term Loans, shall be made, in at least the amount set forth in Exhibit A to the Commitment Letter.
(k) The Collateral and Guarantee Requirement shall have been satisfied with respect to the Borrower and each other Loan Party on the First Amendment Effective Date; provided that if, notwithstanding the use by the Borrower of commercially reasonable efforts to cause the Collateral and Guarantee Requirement to be satisfied on the First Amendment Effective Date, the requirements thereof (other than (a) execution by the Borrower and each other Loan Party of joinders to the Guaranty, Security Agreement Supplements, Intellectual Property Security Agreements, supplements to the First Lien Intercreditor Agreement and other security agreements and documents (if any) required by the Collateral Documents or, as reasonably requested by and in form already specified or otherwise reasonably satisfactory to the Collateral Agent or the Successor Administrative Agent, (b) creation of and perfection of security interests in the certificated Equity Interests of the Borrower and its Subsidiaries to the extent received from the Company so long as the Buyer used commercially reasonable efforts to obtain such certificates on the First Amendment Effective Date and (Cc) delivery of Uniform Commercial Code and PPSA financing statements with respect to perfection of security interests in other assets of the current Debt Ratings; and
Borrower and the other Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code or the PPSA, as applicable) are not satisfied as of the First Amendment Effective Date, the satisfaction of such requirements shall not be a condition to the availability of the initial 2018 Incremental Term Loans on the First Amendment Effective Date (viibut shall be required to be satisfied as promptly as practicable after the First Amendment Effective Date and in any event within five (5) days of the First Amendment Effective Date or such other assurances, certificates, documents, consents or opinions later date as the Successor Administrative Agent may reasonably requireagree).
(bl) The Refinancing (as defined in the Commitment Letter) shall be consummated (the “First Amendment Refinancing”) substantially simultaneously with the incurrence of the initial 2018 Incremental Term Loans and the consummation of the First Amendment Transaction.
(m) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each Initial Term Loans owing to Existing Lenders as of the First Amendment Effective Date, together with all accrued and unpaid interest thereon and all other Loan Documents to which it is a party amounts payable under the Existing Credit Agreement for the account of the Existing Lenders shall have been obtained and paid (or shall be in full force paid substantially simultaneously with the closing hereunder) and effectthe Successor Administrative Agent shall have received evidence reasonably satisfactory to it of the foregoing.
(cn) There The Successor Administrative Agent shall not have occurred during received a Loan Notice in respect of the period from December 312018 Incremental Term Loans to be made on the First Amendment Effective Date and in respect of the Initial Term Loans to be rolled on the First Amendment Effective Date in accordance with the requirements of the Amended Credit Agreement.
(o) The Successor Administrative Agent shall have received a solvency certificate dated the First Incremental Effective Date and after giving effect to the First Amendment Transaction, 2016 through substantially in the form of Annex I to Exhibit E of the Commitment Letter (adjusted to reference the solvency of the Borrower and including its Subsidiaries), of the Borrower’s chief financial officer.
(p) On and as of the First Amendment Effective Date (i) any event or condition the First Amendment Specified Representations shall be true and correct in all material respects (except for representations and warranties that has had or could reasonably are already qualified by materiality, which representations and warranties shall be expected, either individually or in the aggregate, true and correct after giving effect to have a Material Adverse Effect, or such materiality qualifier) and (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Specified Acquisition Agreement Representations (das defined below) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment shall be deemed true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentmateriality qualifier).
Appears in 1 contract
Amendment Effective Date. Section 3.1 This Amendment shall become effective as only upon the date on which each of the date first written above following conditions precedent have been satisfied or waived by the Department (the “Amendment Effective Date”), upon each of which shall be in form and substance and otherwise satisfactory to the satisfaction Department:
3.1.1 The Department shall have received from the Recipient each of the following conditions precedentitems in previously agreed upon form:
(a) The Administrative Agent’s receipt a Sources and Uses Plan for each Project;
(b) legal opinions dated as of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory addressed to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) Department from ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇ & ▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, special Texas and as New York and Delaware counsel to Borrower, addressed to the Administrative Agent and each LenderRecipient Parties;
(vic) a certificate signed by a Responsible Officer of Borrower certifying Base Case Financial Model for each Project;
(Ad) evidence that all Periodic Expenses due and payable to the conditions specified Department and the Department’s Consultants in Section 4.02(a) and (b) connection with this Amendment have been paid or reimbursed in full or, in the case of the Credit Agreement Department’s Consultants, arrangements for payment have been satisfiedmade, in each case, in accordance with any applicable fee letters;
(Be) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or the Construction and Tool Installation Budget for the ID Fab 2 Project consistent with the Base Case Financial Model for the ID Fab 2 Project;
(f) the Milestone Based Schedule for the ID Fab 2 Project;
(g) an Officer’s Certificate of the Recipient substantially in the aggregate, a Material Adverse Effect and form of Exhibit A (CForm of Recipient Amendment No. 2 Amendment Date) the current Debt Ratingsattached hereto; and
(viih) such other assurances, certificates, documents, consents or opinions as copies of the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with Recipient’s duly adopted resolutions to authorize the execution, delivery and performance by Borrower and the validity against Borrower Recipient of this Amendment and each all transactions contemplated hereunder.
3.1.2 Each of the other Loan Documents to which it is a party Department and NY Recipient shall have been obtained and shall be in full force and effectexecuted an amendment to the NY DFA to amend, among other things, Schedule B (Project Milestone Schedule) thereto.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 3.1.3 The Department shall have received notice from such Lender prior a fully executed amendment and restatement of the Sponsor Guarantee.
3.1.4 Each of the Parties shall have executed this Amendment and delivered its executed counterpart to this Amendment to each other Party.
3.1.5 The representations and warranties set forth in Article 4(Representations and Warranties) hereto are true and correct.
3.1.6 After giving effect to the proposed Amendment Effective Date specifying its objection thereto amendments set forth in Article 2 (Amendments to Agreement) hereto, no Potential Event of Default or Event of Default shall have occurred and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentbe continuing.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of be binding upon all parties to the date first written above (Loan Papers on the “Amendment Effective Date”), last day upon the satisfaction of which the following conditions precedenthas occurred:
(a) Counterparts of this Amendment shall have been executed and delivered to Administrative Agent by the Company, Administrative Agent, and the Determining Lenders or when Administrative Agent shall have received telecopied, telexed, or other evidence satisfactory to it that all such parties have executed and are delivering to Administrative Agent counterparts thereof.
(b) Counterparts of the LLC Guaranty shall have been executed and delivered to the Administrative Agent by the Guarantor or when the Administrative Agent shall have received telecopied, telexed, or other evidence satisfactory to it that the Guarantor has executed and is delivering to the Administrative Agent counterparts thereof.
(c) The Administrative Agent’s receipt Agent shall have received from the Company and Guarantor a certificate dated as of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (ordefined below) of its secretary, in the case of certificates of governmental officialsassistant secretary, a recent date before the Amendment Effective Date and in the case of financial statements, the date manager or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
general partner as applicable (i) executed counterparts as to resolutions of its board of directors or managers or their equivalent authorizing the execution and performance of this AmendmentAmendment and the LLC Guaranty, sufficient in number for distribution to as applicable, (ii) the Administrative Agentcertificate or articles of incorporation, each Lender the bylaws, or the limited liability company agreement, as applicable, and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 officer executing this Amendment and the other LLC Guaranty is not named in the incumbency certificate delivered at the time of execution of the Term Loan Documents delivered pursuant Agreement, as to this § 3.1 to which Borrower is a party;the incumbency and signature of said officer.
(ivd) such documents and certifications as the The Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) shall have received favorable opinions of (A) ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrowerof the Company, and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, as to the due authorization, execution and delivery of this Amendment.
(e) Evidence satisfactory to the Administrative Agent that the Company shall have received gross cash proceeds from the TWC Asset Dispositions, the ▇▇▇▇▇▇▇ L.L.P.Loan and the issuance of TWC Preferred Stock in the aggregate amount of no less than $2,100,000,000.
(f) The Company shall have entered into (i) the L/C Agreement, special Texas and New York counsel to Borrower, addressed (ii) a Consent and Fourth Amendment to the Primary Credit Agreement, each in form and substance satisfactory to Administrative Agent and each Lender;the Determining Lenders, and all conditions precedent to the effectiveness thereof shall have been fully satisfied.
(vig) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement The Administrative Agent shall have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) received such other assurances, certificates, documents, documents and consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each . Upon satisfaction of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31foregoing conditions, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment shall be deemed to have consented toeffective on and as of July 3 1, 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 2002 (the Administrative Agent shall have received notice from such Lender prior to the proposed "Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative AgentDate").
Appears in 1 contract
Amendment Effective Date. This The Amendment Effective Date shall become effective as be the date on which all of the date first written above conditions set forth below have been satisfied (or waived by the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:Required Lenders):
(a1) The Administrative Agent’s receipt of the following, each of which Agent shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed have received counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by the Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably requireRequired Lenders.
(b2) All consentsThe Administrative Agent shall have received resolutions of the board of directors of the Borrower, licenses and approvals required in connection with certified by its Secretary or Assistant Secretary, which authorize the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effectAmendment.
(c3) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 The Administrative Agent shall have received notice a certificate from an Authorized Officer of the Borrower stating that (i) each of SenCom and Sakon is primarily engaged in a similar line of business as the Borrower, Titan Wireless, Inc. or Titan Systems Corporation as of the Closing Date; (ii) all or substantially all of the assets owned by SenCom are located in the United States and SenCom is organized under the laws of the United States or a state thereof or the District of Columbia; and (iii) immediately before and after giving effect to this Amendment and the Acquisitions, no Default shall have occurred and be continuing or would result therefrom (including under Section 8.1 of the Credit Agreement).
(4) The Administrative Agent shall have received a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding the Acquisitions (prepared in good faith and in a manner and using such Lender prior methodology which is consistent with the most recent financial statements delivered pursuant to Section 7.1 of the Credit Agreement) giving PRO FORMA effect in accordance with the Credit Agreement to the proposed Amendment Effective Date specifying its objection thereto consummation of the Acquisitions and evidencing compliance with the covenants set forth in Section 8.4 of the Credit Agreement.
(5) The Administrative Agent shall have received a certificate of an Authorized Officer of the Borrower certifying as to a true and complete copy of each purchase agreement, and (to the extent available) all other documents and instruments delivered in connection with the consummation of the Acquisitions and that are required to be delivered pursuant to the terms of the relevant purchase agreement and the Administrative Agent hereby agrees shall be satisfied with all such agreements, documents and instruments and all amendments, waivers or other modifications of, or other forebearance to promptly exercise any rights with respect to, any of the terms or provisions of such purchase agreements, documents and instruments and the exhibits and schedules thereto. To the exent that certain documents and instruments that are required to be delivered pursuant to the terms of the relevant purchase agreement are not available on the Amendment Effective Date, the Borrower shall provide Borrower with a copy of any such notice received by documents and instruments to the Administrative AgentAgent as soon as they become available.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as (a) The effectiveness of this Amendment, the amendments set forth in Sections 3 and 4, the making of the 2025 Refinancing Term Loans and effectiveness of the 2025 Refinancing Revolving Credit Commitment and the making of any 2025 Refinancing Revolving Credit Loans thereunder, in each case, are subject to the satisfaction (or waiver by the 2021 Refinancing Term Lenders and the 2021 Refinancing Revolving Credit Lenders) of the following conditions (the first date first written above on which all such conditions precedent are satisfied (or waived), the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:):
(ai) The the Administrative Agent’s receipt Agent shall have received counterparty signature pages of the following, this Amendment from each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if each Guarantor, each 2025 Refinancing Term Lender and each 2025 Refinancing Revolving Credit Lender; (ii) the Administrative Agent shall have received (A) copies of each Organizational Document of each Loan Party, as applicable, each dated and, to the extent applicable, certified as of the Amendment Effective Date (or, in the case of certificates of governmental officials, or a recent date before prior thereto by the Amendment Effective Date appropriate Governmental Authority; (B) signature and in incumbency certificates of the case of financial statements, the date or period officers of such financial statements) and each in form and substance reasonably satisfactory to Persons executing the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor Loan Documents on behalf of each requesting Lender;
Loan Party; (iiiC) such certificates copies of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers the Board of Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity Directors of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the other Loan Documents delivered pursuant executed in connection with the Amendment, certified as of the Amendment Effective Date by any of its directors, secretary or an assistant secretary as being in full force and effect without modification or amendment and (D) other than with respect to this § 3.1 the U.K. Borrower and, with respect to which Borrower is a party;
(iv) any other Loan Party, to the extent applicable and available in such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its Loan Party’s jurisdiction of organization, issued by a good standing certificate from the appropriate authorities applicable Governmental Authority of such jurisdiction;
each Loan Party’s jurisdiction of incorporation, organization or formation, dated as of the Amendment Effective Date or a recent date prior thereto; (viii) favorable opinions the Administrative Agent shall have received a customary opinion of (A) ▇▇▇▇▇▇▇ ▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Esq., General Counsel special United States counsel for Borrower, the Company and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇& ▇▇▇▇ L.L.P.(UK) LLP, special Texas English legal advisers for the Company as to capacity of the Designated Borrower and New York counsel UK Borrower to Borrowerenter this Amendment, addressed to dated as of the Amendment Effective Date.
(iv) the Administrative Agent and each Lender;
(vi) shall have received a certificate signed by a Responsible Officer of Borrower the Company certifying (Aa) that the conditions specified in Section 4.02(aSections 5(b) and (bc) of the Credit Agreement have been satisfied, satisfied and (Bb) that there has been no event or circumstance since December 31September 28, 2016 2024 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect; (v) Concurrently with the making of the 2025 Refinancing Term Loans, or (a) the entire aggregate principal amount of the Existing Term Loans and (b) all accrued interest, fees and other amounts accrued immediately prior to this Amendment becoming effective in connection therewith shall have been paid in full; 4
(vi) Concurrently with the availability of the 2025 Revolving Credit Facility, (i) the Revolving Credit Commitments in effect immediately prior to this Amendment becoming effective shall have been terminated and the entire aggregate principal amount of the all Existing Revolving Credit Loans outstanding (if any) immediately prior to this Amendment becoming effective shall have been paid in full and (ii) any actionall accrued interest, suit, investigation, proceeding, claim or dispute pending or, fees and other amounts accrued prior to the knowledge of Borrower, threatened this Amendment becoming effective in writing, at law, connection therewith shall have been paid in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
full; (dvii) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid pursuant to the Fee Letter on or before the Amendment Effective Date shall have been paid (or caused to have been paid.
) by the Company to the Administrative Agent on the Amendment Effective Date; (eviii) Borrower The Company shall have delivered a Committed Loan Notice with respect to the 2025 Refinancing Term Loans and a notice of prepayment with respect to the Existing Term Loans, in each case, in accordance with the Credit Agreement; (ix) The Company shall have paid all reasonable fees, charges and disbursements of counsel ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP for which invoices have been presented at least three (3) Business Days prior to the Amendment Effective Date (it is hereby expressly acknowledged and agreed that any fees paid pursuant to this clause (ix) shall be paid by the Company to the Administrative Agent on the Amendment Effective Date); (x) The Loan Parties shall have provided the documentation and other information regarding the Loan Parties to the Administrative Agent and Lenders that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, to the extent invoiced the Company shall have received written reasonable requests therefor (and in the case of any Lender request, through the Administrative Agent) at least three (3) Business Days prior to the Amendment Effective Date. For ; and (xi) The conditions specified in Section 2.19 of the Credit Agreement with respect to the Refinancing shall have been satisfied (it being understood and agreed that, as of the date hereof, such conditions shall be deemed to be satisfied).
(b) Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this §3.1Section 6(a) hereof, each 2025 Refinancing Term Lender and each 2025 Refinancing Revolving Credit Lender that has signed this Amendment 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 notice from such 2025 Refinancing Term Lender or such 2025 Refinancing Revolving Credit Lender, as the case may be, prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentthereto.
Appears in 1 contract
Sources: Refinancing Amendment (Hologic Inc)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender Lender, each Borrower and BorrowerPAA;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrowerthe Company, required to be paid on or before the Amendment Effective Date shall have been paid.
(ec) Borrower The Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §§ 3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower the Company with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Second Amendment shall become effective as of the date first above written above (the “Amendment Effective Date”"AMENDMENT EFFECTIVE DATE"), upon when the satisfaction of the following conditions precedentLender shall have received:
(a) The Administrative Agent’s receipt $7,500,000, representing payment of (i) the Defaulted Loan Payment and (ii) the regularly scheduled loan payments of principal and interest required by Section 2.02(b) and (c) of the followingLoan Agreement due on or before May 1, each 2001, June 1, 2001, July 1, 2001, and August 1, 2001;
(b) counterparts of which shall be originalsthis Second Amendment duly executed by the Borrower and the Lender;
(c) counterparts of the First Amendment to the Pledge Agreement dated as of April 13, telecopies or other electronic copies 2001 (followed promptly the "PLEDGE AGREEMENT AMENDMENT"), in the form of EXHIBIT B to this Second Amendment duly executed by originalsthe Borrower and the Lender;
(d) unless otherwise specifiedcounterparts of the First Amendments to Guaranty Agreements dated as of April 13, each properly 2001 (the "GUARANTY AMENDMENTS"), in the forms of EXHIBIT C-1 and C-2 to this Second Amendment executed by the respective Guarantors and the Lender;
(e) counterparts of the Intercreditor Agreement in the form of EXHIBIT D executed by Startec Global Operating Company and the Lender;
(f) an opinion of counsel to the Borrower satisfactory to Lender it its sole discretion;
(g) a certificate and its attachments (the "OFFICERS' CERTIFICATE") dated the date first above written executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date Borrower and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower each of the Guarantors certifying (A) that the conditions specified in Section 4.02(a) resolutions attached to the Officers' Certificate are true and (b) correct copies of all corporate action necessary to be taken by the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower Guarantors to authorize the execution and delivery of this Amendment Second Amendment, the Pledge Agreement Amendment, the Guaranty Amendments and each of the other Loan Documents to which it is a party shall have been obtained Intercreditor Agreement, as applicable, and shall be such resolutions remain in full force and effect; and the Responsible Officers of the Borrower and of each of the Guarantors whose the names, true signatures and incumbency are set forth therein are authorized to execute and deliver this Second Amendment, the Pledge Agreement Amendment, the Guaranty Amendments and the Intercreditor Agreement, as applicable;
(h) the Amendment Fee and confirmation from Lender's counsel that all fees and expenses of Lender's counsel outstanding on the date hereof have been paid in full.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in The transaction contemplated by the aggregate, to Receivables Purchase Agreement shall have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, closed and Allied Capital Corporation shall have advanced $15,000,000 to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment shall be deemed to have consented for application to, approved or accepted or to be satisfied withamong other things, 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentuses provided herein.
Appears in 1 contract
Sources: Loan and Security Agreement (Startec Global Communications Corp)
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall have been satisfied (or waived by the Administrative Agent):
(a) The the Administrative Agent’s receipt Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by Holdings and the followingBorrower, the Administrative Agent and each of which 2024 Incremental Term Loan Lender;
(b) the Administrative Agent (or its counsel) shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed have received a certificate signed by a Responsible Officer of each Loan Party, in substantially the Borrowerform delivered on the Closing Date, if applicable(i) certifying that the articles of formation (or equivalent document) of such Loan Party, each dated certified by the appropriate Governmental Authority of the state of formation of such Loan Party, and the operating agreement (or equivalent document) of such Loan Party, either (x) has not been amended since the prior date of delivery or (y) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the Amendment Effective Date to be true and correct and in force and effect as of such date, (oriii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 5;
(c) the Administrative Agent (or its counsel) shall have received, on behalf of itself and the 2024 Incremental Term Loan Lenders on the Amendment Effective Date, a customary written opinion of (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel for Holdings, the case Borrower and certain of certificates the Subsidiary Guarantors and (ii) Morris, Nichols, Arsht & T▇▇▇▇▇▇ LLP in its capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors;
(d) the Administrative Agent (or its counsel) shall have received a certificate of governmental officials, good standing (to the extent such concept exists in the relevant jurisdiction) with respect to the Loan Parties certified as of a recent date before by the Amendment Effective Date and in appropriate Governmental Authority of the case state of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrowerformation;
(iie) if so requested within three the Administrative Agent (or its counsel) shall have received all documentation and other information, at least two Business Days prior to the Amendment Effective Date, a Note executed required by Borrower regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in favor of each requesting Lendercase to the extent so requested no less than ten Business Days prior to the Amendment Effective Date);
(iiif) such certificates of resolutions all fees and expenses required to be paid by (or other action, incumbency certificates and/or other certificates of Responsible Officers of on behalf of) the Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in including pursuant to Section 4.02(a) and (b) 9.03 of the Existing Credit Agreement have been satisfied, (Band pursuant to Section 7 hereof) that there has been no event or circumstance since December 31, 2016 that has had the Amendment No. 12 Lead Arrangers pursuant to any engagement letter or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection fee letter with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(eor shall substantially contemporaneously be) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent in full in cash (to the extent invoiced at least three Business Days prior to the Amendment Effective Date. For purposes );
(g) the Administrative Agent shall have received a Borrowing Request in respect of determining compliance the 2024 Incremental Term Loans to be made on the Amendment Effective Date in accordance with the conditions specified requirements of the Existing Credit Agreement;
(h) the representations and warranties set forth in Article 3 of the Amended Credit Agreement shall be true and correct in all material respects on and as of the Amendment Effective Date with the same effect as though such representations and warranties had been made on the Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; and
(i) no Event of Default under Section 7.01(a), (f) or (g) of the Amended Credit Agreement shall exist immediately prior to or immediately after giving effect to the effectiveness of this §3.1Amendment. By executing this Amendment, each Lender that has signed this Amendment the 2024 Incremental Term Loan Lenders and the Administrative Agent shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder have waived, all conditions hereto and to be consented to or approved by or acceptable or satisfactory to a Lender unless the Amendment Effective Date. The Administrative Agent shall have received post a notice from such Lender prior to of effectiveness and occurrence of the proposed Amendment Effective Date, which shall be conclusive. The Administrative Agent and the 2024 Incremental Term Loan Lenders acknowledge and agree that the Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentis December 17, 2024.
Appears in 1 contract
Sources: First Lien Credit Agreement (Lucky Strike Entertainment Corp)
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (such date, the “Fourth Amendment Effective Date”), upon the satisfaction of ) on which the following conditions precedent:have been satisfied (or waived by the Administrative Agent):
(a) a. The Administrative Agent’s receipt Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originalsi) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable(ii) the Administrative Agent and (iii) the Fourth Amendment Increasing Lenders;
b. The Administrative Agent shall have also received:
i. customary written opinions, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A1) White & Case LLP and (2) G▇▇▇▇▇▇▇, H▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) & C▇▇▇▇▇ ▇▇▇▇▇ L.L.P.P.C., each as special Texas and New York counsel to Borrowerthe Credit Parties;
ii. a certificate of an Authorized Officer of each Credit Party dated the Fourth Amendment Effective Date and certifying:
A. that attached thereto is a true and complete copy of each Organizational Document of such Credit Party (and with respect to any articles of incorporation or formation (or equivalent document), addressed as applicable, certified to be true and complete as of a recent date prior to the Administrative Agent Fourth Amendment Effective Date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization) certified by a secretary or other Authorized Officer of such Credit Party to be true and each Lendercorrect as of the Fourth Amendment Effective Date (or solely with respect to the bylaws, operating agreement or equivalent governing document, as applicable, of such Credit Party, that such Credit Party has not modified its bylaws, operating agreement or equivalent governing document, as applicable, since the Third Amendment Effective Date);
(vi) B. that attached thereto is a certificate signed by a Responsible Officer true and complete copy of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) resolutions of the such Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with Party authorizing the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and any other document delivered in connection herewith on the Fourth Amendment Effective Date;
(1) as to the incumbency and specimen signature of each Authorized Officer executing this Amendment or (2) that the incumbency and specimen signature of each Authorized Officer has not changed since the Third Amendment Effective Date; and
D. that attached thereto is a good standing certificate, certificate of status or analogous certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of incorporation or organization of formation, each dated a recent date prior to the Fourth Amendment Effective Date;
iii. if requested by a Fourth Amendment Increasing Lender, the Administrative Agent and such Fourth Amendment Increasing Lender shall have received a duly-executed Revolving Credit Note or amended and restated Revolving Credit Note, as applicable;
iv. a certificate duly executed by an Authorized Officer of the Borrower on the Fourth Amendment Effective Date certifying that (a) no Default or Event of Default shall then exist or immediately after the Fourth Amendment Effective Date would exist and (b) each of the other Loan Documents to which it is a party shall have been obtained representations and warranties contained in Article VI of the Existing Credit Agreement shall be in full force true and effect.
(c) There shall not have occurred during correct as if made on and as of the period from December 31, 2016 through and including the Fourth Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, except to the knowledge of Borrower, threatened in writing, at lawextent that any thereof expressly relate to a specific earlier date, in equity, in arbitration or before any Governmental Authoritywhich case such representations and warranties shall be true and correct as of such earlier date);
v. the results of a recent search, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in a Person satisfactory to the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Credit Party in each casethe appropriate jurisdictions, together with copies of all such filings disclosed by such search; and
c. The Administrative Agent and the Fourth Amendment Increasing Lenders (or their affiliates, as agreed in writing by Borrower, applicable) shall have received payment of all fees required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel pursuant to the Administrative Agent fee letter, dated as of April 17, 2025, and reasonable and documented out-of-pocket expenses to the extent invoiced in reasonable detail at least one business day prior to the Fourth Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This The obligations of the Lenders to make the Loans hereunder on or after the Amendment Effective Date shall not become effective as of until the date first written above (the “Amendment Effective Date”), upon the satisfaction on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received (including by telecopy or email transmission) (i) a counterpart of this Agreement from the following, Borrower and each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Lender under the Borrower, if applicable, each dated Original Credit Agreement immediately prior to the Amendment Effective Date (or, if any such Lender is a Non-Consenting Lender, its Replacement Lender in accordance with Section 2.16(c) of the Original Credit Agreement) and (ii) from each Loan Party party to each other relevant Loan Document (or has received on or after the Closing Date in the case of certificates of governmental officialsLoan Documents continuing pursuant to Section 1.07), a recent date before counterpart of such Loan Document signed on behalf of such Loan Party.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders as of the Amendment Effective Date and dated the Amendment Effective Date) of (i) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the Borrower and certain of the Loan Parties and (ii) local counsel in each jurisdiction in which a Loan Party is organized and the laws of which are not covered by the opinion referred to in (i) above, in each case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:Agent and its counsel.
(ic) executed counterparts The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Transactions (excluding use of proceeds) and any other legal matters relating to the Loan Parties, this AmendmentAgreement or the Transactions (excluding use of proceeds), sufficient including a certificate of each Loan Party substantially in number for distribution the form of Exhibit E, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by the Chief Executive Officer, a Vice President, a Financial Officer of the Borrower or any other executive officer of the Borrower who has specific knowledge of the Borrower’s financial matters and is satisfactory to the Administrative Agent, confirming that (a) the representations and warranties of each Lender Loan Party set forth in the Loan Documents are true and Borrower;correct as of the Amendment Effective Date and (b) as of the Amendment Effect Date, no Default has occurred and is continuing.
(iie) if so requested within three Business Days There shall have been delivered to the Administrative Agent an executed Perfection Certificate.
(f) The Administrative Agent shall have received a solvency certificate in the form of Exhibit I, dated the Amendment Effective Date and signed by the Chief Executive Officer, a Chief Financial Officer, a Chief Accounting Officer or any other executive officer of the Borrower who has specific knowledge of the Borrower’s financial matters and is satisfactory to the Administrative Agent.
(g) The Administrative Agent, the Lead Arrangers and the Lenders shall have received all fees and other amounts due and payable on or prior to the Amendment Effective Date, a Note executed by Borrower in favor including, to the extent invoiced, reimbursement or payment of each requesting Lender;
all out‑of‑pocket expenses (iii) such certificates including fees of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York legal counsel to Borrower, addressed to the Administrative Agent Agent, the Lead Arrangers and each Lender;the Lenders) required to be reimbursed or paid by the Borrower hereunder.
(vih) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement Since December 31, 2014, there shall have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could would reasonably be expected to have a Material Adverse Effect.
(di) Any fees due the Lead Arranger, The Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront feesshall have received the results of a recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any expenses incurred of the assets of the Loan Parties except for Liens permitted by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid Section 6.02 or discharged on or before prior to the Amendment Effective Date shall have been paidpursuant to documentation satisfactory to the Administrative Agent.
(ej) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to To the extent invoiced not received prior to the Amendment Effective Date. For purposes , the Collateral Agent shall have received the certificates representing the certificated Equity Interests pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of determining compliance the pledgor thereof.
(k) The entry into and effectiveness of the Match Credit Agreement shall have occurred substantially concurrently with the conditions specified effectiveness of this Agreement.
(l) Each Loan Party shall have provided the documentation and other information requested by the Lenders that is required by regulatory authorities under applicable “know your customer” and anti- money-laundering rules and regulations, including without limitation, the Act, in this §3.1, each Lender that has signed this case as requested at least three Business Days prior to the Amendment 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 Effective Date.
(m) The Administrative Agent shall have received notice from an executed promissory note payable to the order of each Lender that requested such Lender promissory note at least one Business Day prior to the proposed Amendment Effective Date specifying (or, if requested by such Lender, to such Lender and its objection thereto registered assigns) and the Administrative Agent hereby agrees to promptly provide Borrower with in a copy of any such notice received form approved by the Administrative Agent.
(n) The Borrower shall have paid to the Administrative Agent (i) for the ratable account of the Revolving Lenders immediately on or prior to the Amendment Effective Date, all accrued and unpaid interest on the Revolving Loans under the Original Credit Agreement and all accrued and unpaid fees payable pursuant to Sections 2.09(a) and (b)(i) of the Original Credit Agreement, (ii) for the account of the applicable Issuing Bank, all accrued and unpaid fronting fees payable pursuant to Sections 2.09(b)(ii) of the Original Credit Agreement and (iii) for its own account, all accrued and unpaid fees payable pursuant to Section 2.09(c) of the Original Credit Agreement, in each case to, but not including, the Amendment Effective Date.
(o) The Borrower shall have paid to the Administrative Agent for the account of each of the Revolving Lenders, as fee compensation for the making of such Lender’s Revolving Commitment, an amendment fee as separately agreed. The Administrative Agent shall notify the Borrower and the Lenders of the Amendment Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Amendment Effective Date. This Amendment shall will become effective as on the date on which each of the date first written above following conditions has been satisfied (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:):
(a) The the Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies “PDFs” (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent, the Lead Arrangers and each of the Lenders:
(i) duly executed counterparts of this AmendmentAmendment from each Loan Party, sufficient in number for distribution to the Administrative Agent, Agent and each Lender and BorrowerLender;
(ii) if so requested within three Business Days prior to the Amendment Effective Datesuch documents, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or certifications and other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are each Loan Party is duly organized or and formed, and that Borrower each Loan Party is validly existing and existing, in good standing (or the equivalent thereof with respect to Foreign Borrowers, to the extent applicable) and qualified to engage in business in its jurisdiction of organization, issued by the appropriate authorities of such jurisdictionformation;
(viii) favorable opinions opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇LLP, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrowerthe Loan Parties, addressed to the Administrative Agent and each Lender, as to the enforceability of this Amendment and the Loan Documents as amended hereby, and such other matters as the Administrative Agent may reasonably request;
(viiv) a certificate signed by a Responsible Officer of Borrower the Company certifying that (A) that the conditions specified in this Section 4.02(a) and (b) of the Credit Agreement 6 have been satisfied, (B) that there has been no event the representations and warranties contained in Section 5 are true and correct in all material respects (or, the extent modified by a materiality qualifier or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect, in all respects) on and as of the Amendment Effective Date and (C) the current Debt Ratingsno Default has occurred and is continuing either before or after giving effect to this Amendment; and
(viiv) such other assurances, certificates, documents, consents or opinions as to the extent requested by the Administrative Agent may reasonably requireor any Lender at least 5 days prior to the Amendment Effective Date, any other documentation or information that the Administrative Agent or any Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date to (i) the Administrative Agent and/or the Arrangers and (ii) the Lenders pursuant to either of (A) that certain fee letter agreement dated as of November 14, 2013 among the Company, Bank of America and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and/or (B) that certain fee letter agreement dated as of November 14, 2013 among the Company, ▇▇▇▇▇ Fargo and ▇▇▇▇▇ Fargo Securities, LLC, shall have been paid.
(ec) Borrower Unless waived by the Administrative Agent, the Company shall have paid all reasonable fees, charges and disbursements of a single counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Amendment Effective Date, 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 (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent). For purposes of determining compliance with the conditions specified in this §3.1Section 6, each Lender that has signed executed this Amendment and delivered it to the Administrative Agent shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative AgentLender.
Appears in 1 contract
Sources: Credit Agreement (Urs Corp /New/)
Amendment Effective Date. This Amendment Agreement shall become effective as of on the first date first written above (the “Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall be satisfied (or waived in accordance with Section 10.01 of the Revolving Credit Agreement):
(a) The Administrative Agent’s receipt of Agent shall have executed this Agreement and shall have received from the followingBorrower, the Parent, each of the other Loan Parties, each of the Increasing Lenders, each of the other Existing Lenders, each of the L/C Issuers and each of the Swing Line Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile or electronic transmission) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall be originalshave received:
(i) a certificate of a Responsible Officer of each Loan Party (or of the general partner or sole member of such Loan Party) certifying that (1) except as attached to such certificate, telecopies no changes have been effected since the Restatement Closing Date or, if later, since the date on which such Person became a Loan Party to the certificate or articles of limited partnership, formation or incorporation, as applicable, of such Loan Party or to the limited partnership agreement, operating agreement, bylaws or other electronic copies governing document, as applicable, of such Loan Party and, in each case, that such document, in the form theretofore delivered to the Administrative Agent on the Restatement Closing Date or such later date, remains in force and effect on the Amendment Effective Date and (followed promptly 2) attached thereto is a true, correct and complete copy of resolutions duly adopted by originalsthe general partner, board of directors or other governing body, as applicable, of such Loan Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement;
(ii) unless otherwise specified, each properly executed by a certificate of a Responsible Officer of the BorrowerGeneral Partner, if applicableon behalf of the Parent, each dated certifying that the representations and warranties in Section 3 hereof are true and correct on and as of the Amendment Effective Date Date;
(oriii) a certificate signed by the chief financial officer of the General Partner or another Responsible Officer of the General Partner primarily responsible for the financial affairs of the Parent, in on behalf of the case Parent, certifying that on and as of [[5255041]] the Amendment Effective Date, after giving effect to the transactions described herein, the Parent and its Subsidiaries are Solvent on a consolidated basis; and
(iv) certificates as of governmental officials, a recent date before setting forth the Amendment Effective Date and in good standing of each Loan Party under the case laws of financial statementsits jurisdiction of organization.
(c) The Administrative Agent shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, the date or period of such financial statements) and each in form and substance reasonably satisfactory counsel to the Administrative Agent:
(i) executed counterparts of this AmendmentLoan Parties, sufficient in number for distribution addressed to the Administrative Agent, the Arranger, each Lender and Borrower;each L/C Issuer, in each case as to such customary matters regarding the transactions contemplated herein and in such form as the Administrative Agent may reasonably request.
(iid) if so The Borrower shall have made any prepayment required by Section 2.15(c) of the Revolving Credit Agreement.
(e) The Parent and the Borrower shall have provided to the Administrative Agent and the Increasing Lenders, to the extent requested within three at least five Business Days prior to the Amendment Effective Date, a Note executed by with respect to the Parent, the Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
Parties, (ivi) such documents the documentation and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued other information requested by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that any Increasing Lender in order to comply with the conditions specified in Section 4.02(a) and (b) requirements of the Credit Agreement have been satisfiedPatriot Act, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (Cii) the current Debt Ratings; and
(vii) such documentation and other assurances, certificates, documents, consents or opinions as information requested by the Administrative Agent may in order to comply with all “know your customer” requirements and (iii) all anti-money laundering documentation reasonably requirerequested by the Administrative Agent or any Increasing Lender.
(bf) All consents, licenses and approvals The Administrative Agent shall have received from the Borrower payment of all fees required to be paid by the Borrower to the Arranger or any Increasing Lender in connection with the executiontransactions contemplated hereby, delivery and performance as separately agreed by the Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effectArranger.
(cg) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, The Administrative Agent or any Lender, shall have received from the Borrower payment of all expenses (including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, Attorney Costs) required to be paid on or before by the Amendment Effective Date shall Borrower in connection with the Loan Documents and for which invoices have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced presented at least one Business Day prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 The Administrative Agent shall have received notice from such Lender prior to notify the proposed Borrower, the Parent, the Lenders and the L/C Issuers of the occurrence of the Amendment Effective Date specifying its objection thereto Date, and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentshall be conclusive and binding.
Appears in 1 contract
Sources: Incremental Facility and Amendment Agreement (Noble Midstream Partners LP)
Amendment Effective Date. This Amendment shall become effective as of the date first written above hereof on the date on which the following conditions precedent have been satisfied (the “"Amendment Effective Date”"); provided, upon however, (i) the satisfaction of consent set forth in Section 3(b) above shall not become effective until the following conditions precedentKeystone Effective Date and (ii) the consent set forth in Section 3(c) above shall not become effective until the Leachate Effective Date:
(a1) The Administrative Agent’s receipt of the following, each of which Agent shall be originals, telecopies have received on or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in all of the case following, all of financial statements, the date or period of such financial statements) and each which shall be in form and substance reasonably satisfactory to the Administrative AgentAgents, in sufficient originally executed copies for each of the Lenders:
(i) this Amendment executed counterparts of this Amendment, sufficient in number for distribution to by the Administrative Agent, each Lender Borrowers and BorrowerLenders constituting the Requisite Lenders;
(ii) if so requested within three Business Days prior to an Acknowledgment, substantially in the Amendment Effective Date, a Note form of Exhibit A attached hereto and executed by Borrower in favor of each requesting LenderSubsidiary Guarantor;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower additional documentation as the Administrative Agent Agents or the Requisite Lenders may reasonably require evidencing require.
(2) Each of the identityrepresentations and warranties made by the Borrowers or the Subsidiary Guarantors in or pursuant to the Credit Agreement, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with amended by this Amendment Amendment, and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower the Borrowers or any of the Guarantors is a party;party or by which the Borrowers or any of the Subsidiary Guarantors is bound, shall be true and correct in all material respects on and as of the Amendment Effective Date (other than representations and warranties in any such Loan Document which expressly speak as of a different date).
(iv3) such documents All corporate and certifications as other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Amendment shall be satisfactory in all respects in form and substance to the Administrative Agent may reasonably require Agent.
(4) No Event of Default or Default shall have occurred and be continuing on the Amendment Effective Date.
(5) The Borrowers shall have paid (1) to evidence each Lender that Borrower, General Partner has executed this Amendment an amendment fee equal to 0.3750% of such Lender's outstanding Term Loans and GP LLC are duly organized or formedRevolving Credit Commitments, and (2) the fees set forth in that Borrower is validly existing and in good standing in its jurisdiction of organizationcertain fee letter dated November 6, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) 2000 from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed Inc. to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably requireCompany.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (It Group Inc)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the BorrowerCompany, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statementsDate) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by each Borrower in favor of each requesting Lender;
(iii) a restated Security Agreement, duly executed by each Borrower, covering the Collateral of such Borrower, together with financing statements and Canadian personal property registration statements, that the Administrative Agent, in its reasonable opinion, may deem necessary to perfect the Liens created thereunder, covering the Collateral described therein, recent financing statement searches in the State of Texas that name the Company as debtor, recent personal property registration statement searches in British Columbia and Alberta that name PMCULC as debtor, and such other Collateral Documents as the Administrative Agent, in its reasonable opinion, may deem necessary to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § §3.1 to which Borrower such Loan Party is a party;
(ivv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, each Loan Party and General Partner and GP LLC are is duly organized or formed, and that each Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(vvi) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrowerof the Company and PAA, and (B) Fulbright & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrowereach Borrower and PAA and (C) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special Canadian counsel to PMCULC, addressed to the Administrative Agent and each Lender;
(vivii) (A) the audited consolidated balance sheet of PAA and its Subsidiaries for the fiscal year ended December 31, 2011, and the related consolidated statements of income or operations and cash flows for such fiscal year and partners’ capital of PAA and its Subsidiaries, including the notes thereto, and (B) the pro forma financial projections and forecasts of PAA and its Subsidiaries prepared by or at the direction of PAA and delivered by the Company to the Administrative Agent for the second half of the fiscal year ending December 31, 2012 and for the fiscal years ending December 31, 2013 and December 31, 2014;
(viii) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a), (b) and (bd) of the Credit Agreement have been satisfiedsatisfied (and in the case of said Section 4.02(d), if no Request for Credit Extension is made on the Amendment Effective Date, then determined in respect to then Outstanding Amount of Obligations, if any, of each Borrower), (B) the projections and forecasts described in §3.1(a)(vii)(B) of this Amendment were prepared in good faith upon assumptions deemed reasonable by PAA at the time made, (C) that there has been no event or circumstance since December 31, 2016 2011 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and Effect, (CD) the current PAA Debt RatingsRating, and (E) the Company’s true and correct U.S. taxpayer identification number and PMCULC’s true and correct Canadian corporate access number; and
(viiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents Document to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2011 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of Borrowerthe Company, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against any Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lenderfees, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by of the Lead Arranger Arrangers and Administrative Agent, in each case, as agreed in writing by Borrowerthe Company, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower The Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent timely invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower the Company with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: Third Amended and Restated Credit Agreement (Plains All American Pipeline Lp)
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall have been satisfied (or waived by the Administrative Agent):
(a) The the Administrative AgentAgent shall have received a counterpart signature page of this Amendment duly executed by Holdings, each Incremental Borrower and each Loan Party, the Administrative Agent and each New Term Lender;
(b) the Administrative Agent (or its counsel) shall have received (i) an Officer’s receipt Certificate of or on behalf of Holdings, each Incremental Borrower and each other Loan Party, dated the Amendment Effective Date, in substantially the form delivered on the Closing Date, with appropriate insertions and attachments, including copies of resolutions of the followingBoard of Directors and/or similar governing bodies of Holdings, each Incremental Borrower and each Loan Party approving and authorizing the execution, delivery and performance of which shall be originalsthis Amendment and, telecopies in the case of the Incremental Borrowers, the borrowings hereunder and under the Credit Agreement, certified organizational authorizations (if required by applicable law or customary for market practice in the relevant jurisdiction), incumbency certifications, the certificate of incorporation or other electronic copies (followed promptly by originals) unless otherwise specifiedsimilar Organizational Documents of Holdings, each properly executed Incremental Borrower and each other Loan Party certified by the relevant authority of the jurisdiction of organization, registration or incorporation of Holdings, each Incremental Borrower and each other Loan Party (only where customary in the applicable jurisdiction) and bylaws or other similar Organizational Documents of Holdings, each Incremental Borrower and each other Loan Party certified by a Responsible Officer as being in full force and effect on the Amendment Effective Date, (ii) a good standing certificate (to the extent such concept exists in the relevant jurisdictions) for Holdings, each Incremental Borrower and each other Loan Party from its jurisdiction of organization, registration or incorporation and (iii) in relation to the Lux Borrower, (1) an up-to-date electronic certified true and complete excerpt of the BorrowerCompanies Register dated no earlier than one Business Day prior to the Amendment Effective Date, if applicable, each (2) a solvency certificate dated as of the Amendment Effective Date (signed by a director or authorized signatory) that it is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its director or, in as far as it is aware, by any other Person for the case appointment of certificates a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings, (3) an up-to-date electronic certified true and complete certificate of governmental officialsnon-registration of judgments (certificat de non-inscription d’une décision judiciaire), a recent date before issued by the Companies Register no earlier than one Business Day prior to the Amendment Effective Date and in reflecting the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three situation no more than two Business Days prior to the Amendment Effective DateDate certifying that, a Note executed by as of the date of the day immediately preceding such certificate, the Lux Borrower in favor of each requesting Lender;
has not been declared bankrupt (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formeden faillite), and that Borrower is validly existing it has not applied for general settlement or composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), or reprieve from payment (sursis de paiement), judicial liquidation (liquidation judiciaire) or the appointment of a temporary administrator (administrateur provisoire), such other proceedings listed at Article 13, items 2 to 12 and in good standing in its jurisdiction Article 14 of organizationthe Luxembourg Act dated December 19, issued by 2002 on the appropriate authorities Register of such jurisdiction;
Commerce and Companies, on Accounting and on Annual Accounts of the Companies (vas amended from time to time) favorable opinions (and which include foreign court decisions as to faillite, concordat or analogous procedures according to Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(arecast)) and (b4) an electronic certified copy of the Credit Agreement have been satisfied, resolution of its directors (Bor similar body) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in approving the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall approving the execution, delivery and performance of, and authorizing named persons to sign the Loan Documents to which it is party and any documents to be in full force and effect.delivered by it under any of the same;
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto Security Documents set forth on Schedule 2 hereto executed and delivered by the Loan Parties party thereto;
(d) the Administrative Agent hereby agrees (or its counsel) shall have received a customary written opinion of (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel for Holdings and the Subsidiary Guarantors, (ii) Morris, Nichols, Arsht & T▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel for Holdings and the Subsidiary Guarantors, (iii) Fried, Frank, Harris, S▇▇▇▇▇▇ & J▇▇▇▇▇▇▇ LLP, in its capacity as English law counsel to promptly provide Borrower with a copy of any such notice received by the Administrative AgentAgent and the New Term Lenders, (iv) Loyens & Loeff Luxembourg SARL, in its capacity as special Luxembourg counsel to the Lux Borrower and (v) NautaDutilh Avocats Luxembourg S.á.r.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender Lender, each Borrower and BorrowerPAA;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower such Loan Party is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, each Loan Party and General Partner and GP LLC are is duly organized or formed, and that each Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(viv) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for BorrowerBorrowers and PAA, (B) Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, special Texas and New York counsel to Borrowers and PAA, and (BC) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇, special Texas and New York Canadian counsel to BorrowerPMCULC, addressed to the Administrative Agent and each Lender;
(viv) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a), (b) and (bd) of the Credit Agreement have been satisfiedsatisfied (and in the case of said Section 4.02(d), if no Request for Credit Extension is made on the Amendment Effective Date, then determined in respect to then Outstanding Amount of Obligations, if any, of each Borrower), (B) that there has been no event or circumstance since December 31, 2016 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect, and (C) the current PAA Debt Ratings; and
(viivi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2015 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of BorrowerPAA, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower PAA or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective be binding upon all parties to the Credit Agreement as of the date first written above (the “Amendment Effective Date”), upon ) that Administrative Agent receives the satisfaction of the following conditions precedentfollowing:
(a) The sufficient counterparts of this Amendment, executed and delivered to Administrative Agent by (i) each Obligor, (ii) Administrative Agent’s receipt , (iii) Issuing Bank, and (iv) Required Lenders;
(b) (i) from each of NOARK and AAPL2, such certificates of secretary, assistant secretary, manager, or general partner, as applicable, as the Administrative Agent may require, certifying: (A) resolutions authorizing the execution and performance of this Amendment and the other Loan Documents that such Person is executing in connection herewith; (B) the incumbency and signature of the followingofficer executing such documents; and (C) a copy of such Person’s organizational documents; and (ii) from Borrower, each such certificates of which shall be originalssecretary, telecopies assistant secretary, manager, or other electronic copies general partner, as applicable, as the Administrative Agent may require, certifying resolutions authorizing the execution of the Stock Purchase Agreement and the performance of the Transactions;
(followed promptly by originalsc) unless otherwise specified, each properly executed by a Responsible Officer of from the Borrower, if applicablethe Stock Purchase Agreement and each other agreement, each dated document and instrument executed and delivered any Obligor and any counterparty thereto in connection with the Transaction (collectively, the “Transaction Documents”), together with all schedules and exhibits to such Transaction Documents (as supplemented or amended prior to the Amendment Effective Date (orDate), in the case of certificates of governmental officialscertified as true and complete, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and BorrowerCo-Lead Arrangers;
(iid) if so requested within three Business Days prior to a duly completed compliance certificate, dated as of the Amendment Effective Date, a Note executed by Borrower substantially in favor the form of each requesting Lender;
Exhibit C to the Credit Agreement, demonstrating pro forma compliance with Sections 9.13, 9.14, and 9.15 of the Credit Agreement as of the end of the fiscal quarter ending December 31, 2005, after giving effect to the Transaction and after giving effect to any Indebtedness (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as including the Administrative Agent may reasonably require evidencing obligations under the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Credit Agreement and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a partyDocuments) incurred in connection therewith;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vie) a certificate signed by a Responsible Officer of Borrower certifying Borrower, dated as of the Amendment Effective Date, certifying: (Aa) that the conditions specified in Section 4.02(a) and closing of the Transaction is being consummated on such date; (b) revised Schedules to the Credit Agreement, as applicable; (c) that after giving effect to this Amendment and the revised Schedules to the Credit Agreement, both before and after taking into account the Transaction, the representations and warranties contained in Article VII of the Credit Agreement have been satisfied, and in the Security Instruments are true and correct in all material respects on and as of such date except to the extent such representations and warranties relate solely to an earlier date; (Bd) that there after giving effect to this Amendment, both before and after giving effect to the Transaction, no Default or Event of Default has been no event or circumstance occurred and is continuing as of such date; (e) that since December 31, 2016 that 2004, there has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a no “Material Adverse Effect” (as such term is defined in the Stock Purchase Agreement) with respect to the Borrower; and (f) that there are no actions, suits, investigations or (ii) any action, suit, investigation, proceeding, claim or dispute proceedings pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration any court or before any Governmental Authority, arbitrator or governmental authority by or against Borrower Borrower, any Guarantor, or any of its Subsidiaries or against any of their properties or revenues respective properties, that either individually or in the aggregate(i) if adversely determined, could reasonably be expected to have materially and adversely affect Borrower, any Guarantor, or the Mortgaged Property, taken as a Material Adverse Effect.whole, or the Shares, or (ii) seek to affect or pertain to any transaction contemplated hereby, the Transaction, or the ability of Borrower or any Guarantor to perform its obligations under the Loan Documents;
(df) Any fees due the Lead Arrangera Pledge, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront feesAssignment, and any expenses incurred Security Agreement executed by AAPL2 in favor of the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before for the Amendment Effective Date shall have been paid.benefit of the Lenders;
(eg) Borrower shall have paid all reasonable feesa Pledge, charges Assignment, and disbursements Security Agreement executed by NOARK in favor of the Administrative Agent, for the benefit of the Lenders;
(h) a Guaranty Agreement executed by AAPL2 in favor of the Administrative Agent, for the benefit of the Lenders;
(i) a Guaranty Agreement executed by NOARK in favor of the Administrative Agent, for the benefit of the Lenders;
(j) an opinion of counsel to the Administrative Agent Obligors (including local counsel) acceptable to the extent invoiced prior Co-Lead Arrangers, with respect to the Amendment Effective Date. For purposes existence of determining compliance with the conditions specified Obligors, due authorization and execution of the Amendment, the Transaction Documents, and the other Loan Documents executed in this §3.1connection therewith, enforceability of the Amendment, the Transaction Documents, and such Loan Documents, including without limitation the Security Instruments executed by AAPL2 and NOARK, and other matters incident to the transactions herein contemplated as the Co-Lead Arrangers may reasonably request, each Lender that has signed this Amendment shall be deemed in form and substance satisfactory to have consented tothe Co-Lead Arrangers;
(k) appropriate UCC search certificates and other evidence satisfactory to the Co-Lead Arrangers with respect to the Obligors’ Properties reflecting no prior Liens, approved or accepted or to be satisfied withother than Excepted Liens;
(l) a letter from CT Corporation System, each document Inc., or other matter required thereunder agent acceptable to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent, accepting service of process in the State of New York on behalf of each of AAPL2 and NOARK;
(m) receipt of all fees and expenses due and payable by the Obligors hereunder; and
(n) such other agreements, certificates, documents and evidence of authority as Co-Lead Arrangers, any Lender or counsel to the Co-Lead Arrangers may reasonably request.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Atlas Pipeline Partners Lp)
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall have been satisfied (or waived by the Administrative Agent):
(a) The the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by Holdings, the Borrower and each other Loan Party, the Administrative Agent’s receipt of , the followingIssuing Bank, each of which Amendment No. 15 L▇▇▇▇▇ and the other existing Lenders party hereto (who constitute the Required Lenders);
(b) the Administrative Agent (or its counsel) shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed have received a certificate signed by a Responsible Officer of each Loan Party referred to in clause (a), in substantially the Borrowerform delivered on the Closing Date, if applicable(i) certifying that the articles of formation (or equivalent document) of such Loan Party, each dated certified by the appropriate Governmental Authority of the state of formation of such Loan Party, and the operating agreement (or equivalent document) of such Loan Party, either (x) has not been amended since the prior date of delivery or (y) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the Amendment Effective Date to be true and correct and in force and effect as of such date, (oriii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 6;
(c) the Administrative Agent (or its counsel) shall have received, on behalf of itself and the Amendment No. 15 Lenders on the Amendment Effective Date, a customary written opinion of (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel for Holdings, the case Borrower and certain of certificates the Subsidiary Guarantors, (ii) Morris, Nichols, Arsht & T▇▇▇▇▇▇ LLP in its capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors and (iii) M▇▇▇▇▇▇ W▇▇▇▇ LLP in its capacity as special Virginia counsel for certain of governmental officialsthe Subsidiary Guarantors;
(d) the Administrative Agent (or its counsel) shall have received a certificate of good standing (to the extent such concept exists in the relevant jurisdiction) with respect to the Loan Parties referred to in clause (a) above, certified as of a recent date before by the Amendment Effective Date and in appropriate Governmental Authority of the case state of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrowerformation;
(iie) if so requested within three the Administrative Agent (or its counsel) shall have received all documentation and other information, at least two Business Days prior to the Amendment Effective Date, a Note executed required by Borrower regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in favor of each requesting Lendercase to the extent so requested no less than ten Business Days prior to the Amendment Effective Date);
(iiif) such certificates of resolutions all fees and expenses required to be paid by (or other action, incumbency certificates and/or other certificates of Responsible Officers of on behalf of) the Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in including pursuant to Section 4.02(a) and (b) 9.03 of the Existing Credit Agreement have been satisfied, (Band pursuant to Section 8 hereof) that there has been no event or circumstance since December 31, 2016 that has had the Amendment No. 15 Lead Arrangers pursuant to any engagement letter or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection fee letter with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(eor shall substantially contemporaneously be) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent in full in cash (to the extent invoiced at least three Business Days prior to the Amendment Effective Date);
(g) the Administrative Agent shall have received (x) a notice of prepayment of the Existing Loans and (y) a Borrowing Request in respect of the Amendment No. For purposes of determining compliance 15 Term Loans to be made on the Amendment Effective Date in accordance with the conditions specified requirements of the Existing Credit Agreement;
(h) the representations and warranties set forth in Article 3 of the Amended Credit Agreement shall be true and correct in all material respects on and as of the Amendment Effective Date with the same effect as though such representations and warranties had been made on the Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; and
(i) no Event of Default under Section 7.01(a), (f) or (g) of the Amended Credit Agreement shall exist immediately prior to or after giving effect to the effectiveness of this §3.1Amendment. By executing this Amendment, each Lender that has signed this the Amendment No. 15 Lenders, any existing Lenders party hereto and the Administrative Agent shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder have waived, all conditions hereto and to be consented to or approved by or acceptable or satisfactory to a Lender unless the Amendment Effective Date. The Administrative Agent shall have received post a notice from such Lender prior to of effectiveness and occurrence of the proposed Amendment Effective Date, which shall be conclusive. The Administrative Agent, the Amendment No. 15 Lenders and any existing Lenders party hereto acknowledge and agree that the Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentis September 22, 2025.
Appears in 1 contract
Sources: First Lien Credit Agreement (Lucky Strike Entertainment Corp)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, Borrower and (B) ▇Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ L.L.P.US LLP, special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2015 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Plains All American Pipeline Lp)
Amendment Effective Date. This Amendment shall become effective as The effectiveness of the date first written above (amendment and restatement of the “Amendment Effective Date”), upon Existing Credit Agreement provided for hereby is subject to the satisfaction receipt by the Administrative Agent of the following conditions precedent:
(a) The Administrative Agent’s receipt of the followingdocuments, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative AgentAgent in form and substance:
(a) Certified copies of the charter and by-laws of, and all corporate action taken by, the Company approving this Agreement and the Notes (if any) to be made by the Company, borrowings by the Company and the guarantee of the Company set forth in Section 11 hereof (including, without limitation, a certificate setting forth the resolutions of the Board of Directors of the Company adopted in respect of the transactions contemplated hereby).
(b) A certificate of the Company in respect of each of the officers (i) executed counterparts who is authorized to sign this Agreement, the Notes, Competitive Bid Requests, Designation Letters and Termination Letters, together with specimen signatures, and (ii) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of this Amendmentsigning documents and giving notices and other communications in connection herewith and with the Notes and the transactions contemplated hereby and thereby. The Administrative Agent and each Bank may conclusively rely on such certificate until they receive notice in writing from the Company to the contrary.
(c) An opinion of Schiff, sufficient Hardin & Waite, ▇▇▇cial Illinois counsel to the Company substantially in number for distribution the form of Exhibit A-1 hereto (and the Company hereby instructs such counsel to deliver such opinion to the Banks and the Administrative Agent, each Lender ); and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor an opinion of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) Dale ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.., special Texas and New York general counsel to Borrowerthe Company, addressed substantially in the form of Exhibit A-2 hereto (and the Company hereby instructs such counsel to deliver such opinion to the Administrative Agent Banks and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse EffectAgent).
(d) Any fees due An opinion of Milbank, Tweed, Hadle▇ & ▇▇Clo▇, ▇▇▇cial New York counsel to the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees Banks and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, substantially in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paidform of Exhibit B hereto.
(e) Borrower All principal of and interest on any Syndicated Loans outstanding under the Existing Credit Agreement and all fees payable under the Existing Credit Agreement shall have been paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentfull.
Appears in 1 contract
Sources: Credit Agreement (Newell Co)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by each Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § §3.1 to which Borrower such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, each Loan Party and General Partner and GP LLC are is duly organized or formed, and that each Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrowerof the Company and PAA, and (B) Fulbright & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrowereach Borrower and PAA, and (C) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, special Canadian counsel to PMCULC, addressed to the Administrative Agent and each Lender;
(viA) the audited consolidated balance sheet of PAA and its Subsidiaries for the fiscal years ended December 31, 2010, December 31, 2011 and December 31, 2012, and the related consolidated statements of income or operations and cash flows for such fiscal years and partners’ capital of PAA and its Subsidiaries, including the notes thereto, and (B) the pro forma financial projections and forecasts of PAA and its Subsidiaries prepared by or at the direction of PAA and delivered by the Company to the Administrative Agent for the second half of the fiscal year ending December 31, 2013 and for the fiscal years ending December 31, 2014 and December 31, 2015;
(vii) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a) and ), (b) and
(d) of the Credit Agreement have been satisfiedsatisfied (and in the case of said Section 4.02(d), if no Request for Credit Extension is made on the Amendment Effective Date, then determined in respect to then Outstanding Amount of Obligations, if any, of each Borrower), (B) the projections and forecasts described in §3.1(a)(vi)(B) of this Amendment were prepared in good faith upon assumptions deemed reasonable by PAA at the time made, (C) that there has been no event or circumstance since December 31, 2016 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect, and (CD) the current PAA Debt RatingsRating; and
(viiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2012 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of Borrowerthe Company, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against PAA, any Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead ArrangerArrangers, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by of the Lead Arranger Arrangers and Administrative Agent, in each case, as agreed in writing by Borrowerthe Company, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower The Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower the Company with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement
Amendment Effective Date. This Amendment shall become effective as of the first date first written above on which each of the conditions set forth in this Section H shall have been satisfied (or waived) (such date, the “Amendment Effective Date”):
6 1. the Administrative Agent shall have received duly executed counterparts hereof that, when taken together, bear the signatures of (i) each Credit Party, (ii) the Administrative Agent and the Collateral Agent, (iii) each Stand-Alone L/C Issuer, (iv) the Replacement Term Lender, (v) each New Revolving Lender, (vi) each Revolving L/C Issuer and (vii) the other Lenders party to this Amendment, which collectively constitute (A) the Required Lenders (determined in accordance with Section A.1. above) and (B) all the Initial Term B Lenders and Revolving Lenders on the Amendment Effective Time and determined immediately after giving effect to Section D hereof; 2. the Collateral Trustee shall have received duly executed counterparts hereof that, when taken together, bear the signatures of (i) each Credit Party, (ii) the Collateral Trustee and (iii) Required First Lien Debt Holders on the Amendment Effective Time and determined immediately after giving effect to Section D hereof; 3. the Borrower shall have paid (or shall pay substantially concurrently with the effectiveness of this Amendment on the Amendment Effective Date)
(1) all accrued and unpaid interest on the Revolving Loans and the Initial Term B Loans to, upon but not including, the satisfaction Amendment Effective Date, (2) all accrued and unpaid Revolving Letter of Credit Fees with respect to any issued and outstanding Revolving Letters of Credit to, but not including, the Amendment Effective Date and (3) all accrued and unpaid Revolving Commitment Fees to, but not including, the Amendment Effective Date, in each case, irrespective of whether such accrued amounts are otherwise then due and payable by the terms of the following conditions precedent:
(a) The Credit Agreement; 4. the Administrative Agent’s receipt of the following, each of which Agent shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by have received a Responsible Officer certificate of the Borrower, if applicable, each dated the Amendment Effective Date, substantially in the form of Exhibit I to the Credit Agreement (with appropriate modifications to reflect the nature of the transactions contemplated hereunder), certifying that the conditions in Section H.8 and H.9 hereof have been satisfied as of the Amendment Effective Date; 5. the Administrative Agent shall have received a certificate of the Credit Parties, dated the Amendment Effective Date, certifying (a) a copy of the resolutions of the Authorizing Body (as defined therein) of each Credit Party (or a duly authorized committee thereof) authorizing (i) the execution, delivery and performance of this Amendment (and any agreements relating hereto) to which it is a party and (ii) in the case of the Borrower, the extension of credit contemplated hereunder, (b) true and complete copies of the Organizational Documents of each Credit Party as of the Amendment Effective Date and (c) good standing certificates (to the extent such concept exists in the relevant jurisdiction of organization) of each Credit Party (or, in the case of certificates clause (b), in lieu of governmental officialsattaching such Organizational Documents, shall include a recent certification by an Authorized Officer of each Credit Party certifying that there have been no changes to the corresponding documents delivered to the Administrative Agent on the Closing Date or such later date before on which such Organizational Documents were most recently delivered to the Administrative Agent); 6.
(i) all fees in the amounts previously agreed in writing to be received on the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within all expenses required to be paid in respect of this Amendment pursuant to Section 13.5 of the Credit Agreement, in each case, shall have been paid to the extent due and, with respect to expenses (including reimbursable fees and expenses of counsel), to the extent a reasonably detailed invoice therefor has been delivered to the Borrower at least three (3) Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date7. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such all documentation and other information with respect to the Credit Parties that is requested by the Administrative Agent or a Lender and is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, in each case, to the extent reasonably requested in writing at least ten (10) Business Days prior to the proposed Amendment Effective Date specifying its objection thereto and by the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any or such notice received by the Administrative Agent.Lender;
Appears in 1 contract
Sources: Credit Agreement (Talen Energy Corp)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”)above, upon the satisfaction of the following conditions precedent:when and only when
(ai) The Administrative Agent shall have received, at Administrative Agent’s receipt 's office (A) a counterpart of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly this Amendment executed and delivered by originals) unless otherwise specified, each properly executed by a Responsible Officer of the US Borrower, if applicableTerm Borrower, Canadian Revolver Borrower, Plains MLP, All American and Majority Lenders which are parties to the Original Agreement, and consented to by each dated Guarantor, (B) a contemporaneous amendment to the Amendment Effective Date Marketing Credit Agreement, amending (orI) certain restrictions on the incurrence of Indebtedness by Restricted Persons so as to permit the Term-B Loans, in (II) certain financial covenants on the case of certificates of governmental officialssame terms and conditions set forth herein, a recent date before and (III) various other provisions therein consistent with the Amendment Effective Date and in the case of financial statementsamendments set forth herein, the date or period of such financial statements) and each in form and substance reasonably satisfactory acceptable to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender executed and Borrowerdelivered by such Persons so as to make such amendment effective;
(iiA) if so requested within three Business Days prior In consideration hereof, US Borrower shall have paid to Administrative Agent for the Amendment Effective Date, a Note executed by Borrower in favor account of each requesting Lender;
, other than Term-B Lenders, executing and delivering this Amendment an amendment fee in immediately available funds equal to one-twentieth of one percent (iii0.05%) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized such Lender's Commitment; provided, with respect to act any such Lender's US Commitment, such fee shall be based upon the US Commitment as a Responsible Officer in connection with this Amendment and the other Loan Documents delivered reduced pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for BorrowerSection 2.8 hereof, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) US Borrower shall have paid all reasonable feesother fees required to be paid to Administrative Agent or any Lender pursuant to any Loan Documents, charges including fees and disbursements expenses of Thompson & Knight LLP, counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 Agent; and
(iii) Administrative Agent shall have additionally received notice from such Lender prior to all of the proposed Amendment Effective Date specifying its objection thereto and following documents, each document (unless otherwise indicated) being dated the Administrative Agent hereby agrees to promptly provide Borrower with a copy date of any such notice received receipt thereof by the Administrative Agent., duly authorized, executed and delivered, and in form and substance satisfactory to Administrative Agent:
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall have been satisfied (or waived in accordance with Section 10.01 of the Credit Agreement):
(a) The the Administrative Agent shall have received (i) a counterpart signature page of this Amendment duly executed by the Company, the Administrative Agent’s receipt , each Incremental Lender and, solely with respect to the ▇▇▇▇▇ Replacement, each Consenting Lender and (ii) a Note executed by the Company in favor of each Incremental Lender requesting a Note at least three Business Days in advance of the following, each of which Amendment Effective Date;
(b) the Administrative Agent shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed have received a certificate signed by a Responsible Officer of the BorrowerCompany certifying (i) that the articles of formation or other comparable organizational documents of the Company, if applicablecertified by the relevant authority of the jurisdiction of organization the Company and a true and complete copy of the bylaws, each dated operating agreement or comparable governing document of the Company either (A) has not been amended since the Closing Date or (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (ii) that attached thereto are the written consents of the Company’s governing body authorizing the execution, delivery, performance of, this Amendment and such written consents have not been modified, rescinded or amended and are in full force and effect on the Amendment Effective Date without amendment, modification or rescission, and (or, in iii) as to the case incumbency and genuineness of certificates the signature of governmental officials, the officers or other authorized signatories of the Company executing this Amendment;
(c) the Administrative Agent shall have received a certificate as of a recent date before of the good standing of the Company under the laws of its jurisdiction of organization from the relevant authority of its jurisdiction of organization (to the extent relevant and available in the jurisdiction of organization of the Company);
(d) the Administrative Agent shall have received (i) all documentation and other information from the Company reasonably requested by the Administrative Agent (on behalf of any Incremental Lender as of the Amendment Effective Date) at least five (5) days in advance of the Amendment Effective Date, in connection with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) days prior to the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within at least three Business Days (3) days prior to the Amendment Effective Date, to the extent the Company qualifies as a Note executed by Borrower “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in favor of each requesting Lenderrelation to the Company;
(iiie) the representations and warranties set forth in Section 4 of this Amendment 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) on and as of the Amendment Effective Date, except to the extent that such certificates representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of resolutions or other actionsuch earlier date, incumbency certificates and/or other certificates of Responsible Officers of Borrower as and
(ii) the Administrative Agent may shall have received a certificate (in form and substance reasonably require evidencing acceptable to the identityAdministrative Agent), authority dated as of the Amendment Effective Date and capacity of each Responsible Officer thereof authorized to act as signed by a Responsible Officer in connection with this Amendment of the Company, certifying as to such representations and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a partywarranties;
(ivf) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction shall have received a favorable legal opinion of organization, issued by the appropriate authorities each of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, and ▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrowerexternal and in-house counsel, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.respectively, special Texas and New York counsel to Borrowerthe Company, addressed to the Administrative Agent and each Lender;Incremental Lender party hereto, as to matters concerning the Company and this Amendment (including enforceability of this Amendment under New York law); and
(vig) a certificate signed by a Responsible Officer the Company shall have paid (i) to the Administrative Agent (or its applicable Affiliate) any fees due and required to be paid to the Administrative Agent (or its applicable Affiliate) on the Amendment Effective Date pursuant to that certain Letter Agreement, dated as of Borrower certifying October 23, 2023, among the Company and the Administrative Agent (A) that the conditions specified in Section 4.02(aor its applicable Affiliate) and (bii) subject to Section 10.04(a) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least one Business Day prior to the Amendment Effective Date. For purposes , the reasonable out-of-pocket expenses of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to in connection with this Amendment, including the proposed Amendment Effective Date specifying its objection thereto reasonable and the Administrative Agent hereby agrees to promptly provide Borrower with a copy documented out-of-pocket fees and expenses of any such notice received by one counsel for the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall have been satisfied (or waived by the First Amendment Incremental Term Lenders and the Required Revolving Credit Lenders):
(a) The the Administrative Agent’s receipt Agent (or its counsel) shall have received (x) a counterpart signature page of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly this Amendment duly executed by a Responsible Officer of the Borrower, if the Administrative Agent and each First Amendment Incremental Term Lender and (y) a counterpart signature page of this Amendment duly executed by the Revolving Credit Lenders constituting the Required Revolving Credit Lenders under the Existing Credit Agreement immediately prior to the Amendment Effective Date;
(b) the Administrative Agent (or its counsel) shall have received a customary opinion from ▇▇▇▇▇▇▇ Procter LLP in its capacity as counsel to the Credit Parties dated as of the Amendment Effective Date and addressed to the Administrative Agent and the First Amendment Incremental Term Lenders;
(c) the Administrative Agent shall have received (a) the audited consolidated financial statements of the Target and its subsidiaries for the fiscal years ended December 31, 2020 and December 31, 2019 and (b) the audited consolidated balance sheet of the Borrower and its subsidiaries for the fiscal years ended June 30, 2021 and June 30, 2020 and, in each case, the related audited consolidated statements of income and cash flows for the fiscal years then-ended; provided that (x) in each case, the Borrower’s or the Target’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements and (y) in each case, the filing of the foregoing required financial statements on form 10-K or form 10-Q, as applicable, with the SEC by the Borrower or the Target, as applicable, will satisfy the foregoing requirements;
(d) the Administrative Agent (or its counsel) shall have received (i) a certificate of each Credit Party, dated the Amendment Effective Date Date, certifying as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Amendment and certifying that attached thereto is a true, correct and complete copy of (orA) the articles or certificate of incorporation or formation (or equivalent), as applicable, of such Credit Party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, (B) the bylaws or other governing document of such Credit Party as in effect on the Amendment Effective Date, (C) resolutions duly adopted by the Board of Directors of such Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party and (D) each certificate as of a recent date of the good standing (to the extent such concept exists in the applicable jurisdiction) of each Credit Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(e) with respect to the First Amendment Incremental Term Loans only, (x) each of the Specified Merger Agreement Representations shall be true and correct in all material respects (or in all respects, if qualified by materiality) as of the Amendment Effective Date, except to the extent expressly made as of an earlier date, in which case such Specified Merger Agreement Representations shall have been true and correct in all material respects (or in all respects, if qualified by materiality) as of such earlier date and (y) each of the First Amendment Specified Representations shall be true and correct in all material respects (or in all respects, if qualified by materiality) as of the Amendment Effective Date, except to the extent expressly made as of an earlier date, in which case such First Amendment Specified Representations shall have been true and correct in all material respects (or in all respects, if qualified by materiality) as of such earlier date; provided that to the extent any of the Specified Merger Agreement Representations are qualified or subject to “material adverse effect,” the definition thereof shall be “Company Material Adverse Effect” as defined in the Merger Agreement for the purposes of any representations and warranties made, or to be made, on or as of the Amendment Effective Date;
(f) with respect to the First Amendment Incremental Term Loans only, since the date of the Merger Agreement, there shall not have occurred and be continuing to exist any “Company Material Adverse Effect” (as defined in the Merger Agreement);
(g) subject to the last paragraph of this Section 4, all actions necessary to establish that the Administrative Agent will have a perfected first priority security interest (free and clear of all Liens other than Permitted Liens) in the Collateral under the Loan Documents shall have been taken (or shall be taken contemporaneously with funding);
(h) all costs, fees and expenses (including, without limitation, reasonable and documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Borrower in connection with this Amendment to the Administrative Agent, the First Amendment Lead Arrangers, the First Amendment Co-Manager and the First Amendment Incremental Term Lenders, including without limitation pursuant to the Amended Restated Commitment Letter and the Amended and Restated Joint Fee Letter, in each case dated as of September 20, 2021 and entered into between the First Amendment Lead Arrangers, the First Amendment Co-Manager and the Borrower with respect to the First Amendment Incremental Term Loans, shall have been paid; provided that, in the case of certificates of governmental officialsany legal fees and expenses, a recent date before an invoice therefor has been delivered to the Borrower at least three (3) Business Days prior to the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:Date;
(i) executed counterparts the Administrative Agent (or its counsel) shall have received a certificate of this Amendment, sufficient in number for distribution solvency from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Borrower certifying as to the Administrative Agent, each Lender and Borrowermatters set forth therein;
(iij) if so requested within the Acquisition shall be consummated pursuant to the Merger Agreement, substantially concurrently with the funding of the First Amendment Incremental Term Loans, and no provision of the Merger Agreement shall have been amended or waived, and no consent or direction shall have been given thereunder, in any manner materially adverse to the interests of the First Amendment Incremental Term Lenders (in their capacity as such) without the prior written consent of such First Amendment Incremental Term Lenders (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (a) any amendment to the definition of “Company Material Adverse Effect” in the Merger Agreement shall be deemed to be materially adverse to the interests of such First Amendment Incremental Term Lenders (in their capacity as such), (b) any decrease in the purchase price shall be deemed to be materially adverse to the interests of the First Amendment Incremental Term Lenders unless such decrease is in an amount less than or equal to 10% of the purchase price and proportionately reduces the aggregate principal amount of the First Lien Incremental Term Loans and (c) any increase in the purchase price shall not be deemed not to be materially adverse to the interests of such First Amendment Incremental Term Lenders (in their capacity as such) to the extent not funded with additional indebtedness;
(k) the First Amendment Lead Arrangers shall have received, at least three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or all documentation and other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as information about 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party Guarantors that shall have been obtained and shall be reasonably requested by the First Amendment Lead Arrangers or any First Amendment Incremental Term Lender in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including writing at least 10 Business Days prior to the Amendment Effective Date (i) any event and that such First Amendment Lead Arranger or condition that has had or could such First Amendment Incremental Term Lender reasonably be expecteddetermines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, either individually or in including the aggregate, to have a Material Adverse Effect, or PATRIOT Act and the CDD Rule and (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Amendment Effective Date, any First Amendment Incremental Term Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Borrower shall have received such Beneficial Ownership Certification;
(l) with respect to the First Amendment Incremental Term Loans only, no Specified Event of Default shall have occurred and be continuing immediately prior to and immediately after giving effect to the First Amendment Incremental Term Loan Commitment and the incurrence of the First Amendment Incremental Term Loans pursuant thereto and immediately prior to and immediately after giving effect to the other Transactions;
(m) with respect to the First Amendment Incremental Term Loans only, no Default or Event of Default shall have occurred and be continuing at the time of the execution of the Merger Agreement;
(n) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower (i) certifying as to the matters referred to in clauses (e), (f), (j), (l) and (m) demonstrating compliance with the requirements set forth in Section 5.13(a) of the Existing Credit Agreement;
(o) the Administrative Agent shall have received a reaffirmation agreement and a reaffirmation of foreign pledge agreement, in each case, dated as of the Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent and in substantially the same form as the Reaffirmation Agreement and the Reaffirmation of Foreign Pledge Agreement. For purposes of determining compliance with whether the conditions specified in this §3.1Section 4 have been satisfied on the date hereof, each Lender that has signed this by the funding of the First Amendment Incremental Term Loans, the Administrative Agent and the First Amendment Incremental Term Lenders shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior or the First Amendment Incremental Term Lenders, as the case may be. Notwithstanding anything herein to the proposed contrary, the terms of the Existing Credit Agreement, including Sections 8.13 and 8.16 thereof, shall govern the provision of any lien search or Collateral (including the creation or perfection of any security interest) with respect to the Target or any of its subsidiaries and in no event shall any lien search or Collateral (including the creation or perfection of any security interest) constitute a condition precedent to the availability or funding of the First Amendment Incremental Term Loans on the Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative AgentDate.
Appears in 1 contract
Sources: First Amendment and Lender Joinder Agreement (SYNAPTICS Inc)
Amendment Effective Date. SUBSEQUENT AMENDMENT FEES
2.1 This Amendment shall become effective as of the date first written above June 30, 1996 (the “"Amendment Effective Date”"); provided, upon the satisfaction of however, that this Amendment shall not be effective if the following conditions precedent:
are not satisfied on or before August 12, 1996: (i) the delivery by Merisel Canada of a Consent and Acknowledgement in the form of Annex A hereto; (ii) the delivery by the Borrowers and Merisel Parent to the Lenders (or to the Agent with sufficient originally executed copies, where appropriate, for each Lender) of (a) The Administrative Agent’s receipt certified resolutions of their respective Board of Directors approving and authorizing the followingexecution, each of which shall be originalsdelivery, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts performance of this Amendment, sufficient in number for distribution to (b) signature and incumbency certificates of the Administrative Agentofficers executing this Amendment, each Lender and Borrower;
(iic) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor copies of each requesting Lender;
this Amendment; (iii) such certificates of resolutions or all corporate and other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized proceedings required to act as a Responsible Officer be taken in connection with the transactions contemplated hereby shall have been taken; and (iv) the Borrowers shall have paid to each Lender that shall have executed and delivered to the Agent by 5:00 p.m. (Los Angeles time) on August 9, 1996 signature pages to this Amendment, an amendment fee in an amount equal to (x) the greater of (A) 0.10% and (B) the percentage applicable to any amendment fee that the holders of the Senior Notes may be paid in connection with the amendments similar to those effected by this Amendment multiplied by (y) such Lender's Commitment.
2.2 The Borrowers agree to promptly pay to each Lender that shall have executed and delivered subsequent to 5:00 p.m. (Los Angeles time) on August 9, 1996 and prior to 5:00 p.m. (Los Angeles time) on August 20, 1996 counterpart signature pages to this Amendment and the other Loan Documents letter referred to in Section 7.02(a)(xi) -2- of the Amended Agreement (as amended by this Amendment) (the "Letter"), the amendment fee referred to in clause (iv) of Section 2.1 of this Amendment; provided however that if the Majority Lenders shall not have executed and delivered by 5:00 p.m. (Los Angeles time) on August 9, 1996, counterpart signature pages to this Amendment and the Letter or the conditions set forth in Section 2.1 of this Amendment have not been satisfied or waived on or prior to August 9, 1996, the Borrowers shall have no obligation to pay any amendment fees pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) 2.2. Failure of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected Borrowers to have, either individually or in comply with this provision shall constitute and Event of Default under the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably requireAmended Agreement.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Except as set forth in Section 3 ------------------------ --------- above, this Third Amendment shall become effective as of the date first written above date, on or before June 30, 1997 (the “"Amendment Effective Date”), upon the satisfaction ") when each of the following ------------------------ conditions precedentshall have been satisfied, provided, however, that to the extent -------- ------- either Acquisition has not been consummated on or prior to the date on which this Third Amendment would otherwise become effective, the conditions relating to such Acquisition need not be satisfied in order for the Amendment Effective Date to occur:
(a) The Administrative Agent’s receipt the Agent shall have received each of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (orfollowing documents, in the each case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts hereof executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agentby each Borrower, each Lender Parent Guarantor, the Agent and Borrowereach Lender;
(ii) if so requested within three Business Days prior an amended and restated Note made by each Borrower, in each case payable to BTCC, each in a principal amount of $122,500,000 and otherwise in substantially in the form of Exhibit D to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting LenderCredit Agreement;
(iii) such certificates a Reaffirmation of resolutions or other actionGuaranty and Contribution Agreements executed by each Borrower in favor of the Agent, incumbency certificates and/or other certificates the Issuing Bank and the Lenders, pursuant to which each Borrower confirms its full and unconditional guarantee of Responsible Officers the payment and performance of Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity Obligations of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents delivered pursuant to this § 3.1 to which Borrower is a partyBorrower;
(iv) such documents if the Comtect Consolidation has not then been consummated, a Reaffirmation of Guaranty and certifications as Contribution Agreement executed by each Subsidiary Guarantor in favor of the Administrative Agent may reasonably require Agent, the Issuing Bank and the Lenders, pursuant to evidence that Borrower, General Partner which each Subsidiary Guarantor confirms its full and GP LLC are duly organized or formed, unconditional guarantee of the payment and that Borrower is validly existing and in good standing in its jurisdiction performance of organization, issued by the appropriate authorities Obligations of such jurisdictionAcme ▇▇▇▇▇;
(v) favorable opinions an amendment to the Security Agreement giving effect to the Acquisitions;
(vi) to the extent that ▇▇▇▇▇▇ ▇▇▇▇▇ acquires any federally registered trademarks or trademark applica tions in either Acquisition, an amendment to the Trademark Security Agreement giving effect to such Acquisition;
(vii) Collateral Access Agreements with respect to each real property location leased or subleased by ▇▇▇▇▇▇ ▇▇▇▇▇ from the applicable selling shareholders where assets acquired in either Acquisition are or will be located (provided that ▇▇▇▇▇▇ ▇▇▇▇▇ shall -------- use its best efforts to obtain Collateral Access Agreements with respect to all other real property locations where such assets are or will be located in accordance with Section 7.17 of the Credit Agreement);
(Aviii) ▇collateral assignments of all of RSC's and ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and ' rights under the Purchase Agreements;
(BA) Uniform Commercial Code financing statements naming ▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas as debtor and New York counsel to Borrower, addressed the Agent as secured party as to the Administrative Agent assets acquired in the Acquisitions for all jurisdictions as may be necessary or desirable to perfect the Liens granted to the Agent, for the benefit of the Holders, in such assets pursuant to the Security Agreement and each Lender(B) Uniform Commercial Code financing and amendment statements reflecting the Acme ▇▇▇▇▇ Name Change;
(vix) a certificate signed by a Responsible Officer of Borrower certifying personal property tax, lien and judgment searches against FHR, CSE, EL and any other Person selling assets in either Acquisition (A) that collectively, the conditions specified in Section 4.02(a"Selling Parties") and all trade names of any of --------------- them in all jurisdictions where any Selling Party has, or within the last five years had, personal property;
(bxi) evidence that all Indebtedness which is secured by any Lien encumbering any asset acquired in either Acquisition has been repaid and that all such Liens have been terminated other than such Indebtedness permitted under Section 8.6(c) or Section 8.6(d) of the Credit Agreement have been satisfied, and Liens permitted by Section 8.7(c) of the Credit Agreement;
(Bxii) appraisals of all Rental Equipment acquired in each Acquisition;
(xiii) copies of all Phase I environmental reports delivered with respect to real property owned or to be owned or leased or to be leased by the Credit Parties where assets acquired in either Acquisition are or will be located;
(xiv) Evidence that there the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ waiting period with respect to each Acquisition has expired or has been no event terminated;
(xv) a certificate of the Secretary or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and Assistant Secretary of each Credit Party certifying (CA) the current Debt Ratings; and
(vii) resolutions of the Board of Directors of such other assurancesCredit Party authorizing, certificatesto the extent applicable, documentsthe Acquisitions, consents or opinions as the Administrative Agent may reasonably require.
(b) All consentsNew Offering, licenses and approvals required in connection with the execution, delivery and performance by Borrower of this Third Amendment and the validity against Borrower Credit Documents executed in connection herewith, (B) the names, incumbency and signatures of the officers of such Credit Party authorized to execute, deliver and perform such Credit Documents and (C) the accuracy and completeness of the Governing Documents delivered to the Agent, the Issuing Banks and the Lenders prior to the Amendment Effective Date, attaching thereto any and all amendments and modifications of such Governing Documents not previously delivered to such parties;
(xvi) a certificate of the chief executive officer, chief financial officer or treasurer of each Credit Party executed and delivered on behalf of such Credit Party certifying that all conditions precedent to the effectiveness of this Third Amendment (other than conditions within the control of the Agent and each the Lenders) have been met (or, concurrently with the Amendment Effective Date, will be met), all representations and warranties made in this Third Amendment are true and correct and (after giving effect to this Third Amendment) no Default or Event of Default has occurred and is continuing, provided that, to the extent such a certificate is -------- required to be delivered prior to the Amendment Effective Date pursuant to Section 3 above, such certificate shall certify that all --------- conditions precedent to the consent of the Majority Lenders to the applicable Acquisition have been met, all representations and warranties made in this Third Amendment as of the date of consummation of such Acquisition are true and correct as of such date and no Default or Event of Default has occurred and is continuing as of such date;
(xvii) a Solvency Certificate for the Credit Parties, on a combined basis, executed by the Senior Vice President of Operations of RSC and chief financial officer or treasurer of the other Loan Documents Credit Parties and giving effect to this Third Amendment and the New Offering;
(xviii) Good Standing Certificates (including tax certifications where available) for ▇▇▇▇▇▇ ▇▇▇▇▇ from the appropriate Governmental Authorities in the States of Illinois, Iowa, Kansas, Missouri and Oklahoma (or other evidence satisfactory to the Agent that ▇▇▇▇▇▇ ▇▇▇▇▇ has qualified to do business in such states);
(xix) a certified copy of the prospectus and Registration Statement for the New Offering;
(xx) a funds flow memorandum certified by the chief financial officer or treasurer of the Credit Parties with respect to the proceeds of the New Offering and the payment of transaction costs related thereto;
(xxi) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Credit Parties, with respect to this Third Amendment and other matters which it is the Agent may reasonably request;
(xxii) to the extent delivered in connection with either Acquisition, an opinion of counsel to the applicable Selling Parties with respect to such Acquisition which permits, either expressly or pursuant to a party reliance letter, the Agent, the Issuing Bank and the Lenders to rely thereon; and
(xxiii) such additional documentation as the Agent may reasonably request.
(b) The Agent and each Lender shall have been obtained completed its review of the business, operations, assets, liabilities and Contractual Obligations of the Credit Parties, after giving effect to the New Offering and the Acquisitions, the results of which shall be have provided the Agent and each Lender with results and information which, in full force the judgment of each such Person, are satisfactory to permit the Agent and effecteach Lender to enter into this Third Amendment.
(c) There All aspects of each Acquisition shall have been, or concurrently with the effectiveness hereof will be, consummated, in compliance with all applicable Requirements of Law, the Credit Agreement (as amended by this Third Amendment), the other Credit Documents and the applicable Purchase Agreement (unless waived in writing by the Majority Lenders).
(d) All aspects of the New Offering shall have been consummated in compliance with all applicable Requirements of Law and the Registration Statement therefor, and RSC shall have received net proceeds from the New Offering in an amount not less than $45,000,000.
(e) No law, regulation, order, judgment or decree of any Governmental Authority shall, and the Agent shall not have occurred during received any notice that litigation is pending or threatened which is likely to, enjoin, prohibit or restrain the period from December 31consummation of the Acquisitions, 2016 through and including the Amendment Effective Date (i) any event New Offering or condition the transactions contemplated by this Third Amendment, except for such laws, regulations, orders or decrees, or pending or threatened litigation that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, aggregate could not reasonably be expected to have result in a Material Adverse Effect.
(df) Any fees due Complete and accurate copies of the Lead ArrangerPro Forma and the Projections shall have been delivered to the Agent. After review of the foregoing, Administrative the Agent shall be satisfied, in its sole discretion, that (i) the financial condition of the Credit Parties does not differ in any material adverse respect from the condition evidenced by the financial information provided to the Agent prior to April 30, 1997 and (ii) the Credit Parties will be able to comply with the Financial Covenants.
(g) Since April 30, 1997, there shall not have occurred a material adverse change in financial, banking or any Lendercapital market conditions generally that, including any arrangement feesin the sole judgment of BTCC, agency fees and upfront feeswould substantially impair the subsequent marketability of the Commitment of BTCC.
(h) All Fees, and any expenses incurred by all Expenses as to which the Lead Arranger and Administrative AgentCredit Parties have received an invoice, in each case, as agreed in writing by Borrower, required to be paid case which are payable on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
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Amendment Effective Date. This The Amendment Effective Date shall become effective be the first date on which each condition set forth below is satisfied or waived:
a. The Administrative Agent (or its counsel) shall have received duly executed counterparts of this Amendment from the Borrower and each Incremental Revolving Commitment Lender.
b. The Administrative Agent (or its counsel) shall have received duly executed copies of the Affirmation of Guaranty, substantially in the form set forth in Exhibit I to this Amendment (the “Affirmation of Guaranty”), from each Guarantor.
c. The Administrative Agent shall have received (i) either (x) a copy of the Organization Documents, including all amendments thereto, of the Borrower and each Guarantor, certified, if applicable, as of a recent date by the Secretary of State or other competent authority of the state of its organization, if applicable, or similar Governmental Authority, and a certificate as to the good standing or comparable certificate under applicable law (where relevant) of the Borrower and each Guarantor as of a recent date from the Amendment Effective Date, from such Secretary of State, similar Governmental Authority or other competent authority or (y) certification that the Organization Documents of the Borrower and each Guarantor have not changed since the versions previously provided to the Administrative Agent and (ii) a certificate of the Secretary or Assistant Secretary or comparable officer under applicable law or director of the Borrower and each Guarantor dated the Amendment Effective Date and certifying (where relevant) (A) that either (x) attached thereto is a true and complete copy of the Organization Documents of the Borrower and each Guarantor as in effect on the Amendment Effective Date or (y) certifying that the Organization Documents of the Borrower and each Guarantor have not changed since the versions previously provided to the Administrative Agent, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of the Borrower and each Guarantor authorizing the execution, delivery and performance of this Amendment and the Affirmation of Guaranty, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the Organization Documents of the Borrower and each Guarantor have not been amended since the date of the last amendment shown on such certificate, (D) as to (if applicable) the incumbency and specimen signature of each officer executing this Amendment on behalf of the Borrower and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or comparable officer under applicable law executing the certificate pursuant to clause (ii) above and (E) such other matters that are customarily included in a certificate of this nature in the jurisdiction of its incorporation or organization.
d. The representations and warranties of each Loan Party contained in Article V of the Credit Agreement, this Amendment or any other Loan Document shall be true and correct in all respects or, in the case of such representations and warranties which are not otherwise subject to a materiality qualification in accordance with its terms, shall be correct in all material respects, in each case on and as of the date first written above (the “Amendment Effective Date”), upon except to the satisfaction 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 as of such earlier date.
e. No Default shall exist before, or would result from, the incurrence of the following conditions precedent:Incremental Revolving Commitment on the Amendment Effective Date or any related Revolving Credit Loans contemplated hereby or the application of the proceeds thereof, or the consummation of the transactions contemplated herein.
(a) f. The Administrative Agent’s receipt Agent shall have received, on behalf of itself, the followingCollateral Agent and the Lenders, each on the Amendment Effective Date, customary written opinions of which K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, special counsel for the Borrower.
g. The Administrative Agent shall be originalshave received a certificate, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed dated the Amendment Effective Date and signed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
confirming (i) executed counterparts of this Amendment, sufficient compliance with the conditions precedent set forth in number for distribution to the Administrative Agent, each Lender paragraphs (d) and Borrower;
(e) above and (ii) if so requested within three Business Days that after giving Pro Forma Effect to the increase of the Revolving Credit Commitments contemplated in this Amendment (assuming that all such Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Revolving Commitments) and after giving effect to any Specified Transaction consummated in connection therewith and all other appropriate Pro Forma Adjustments, the First Lien Net Leverage Ratio does not exceed 4:25:1.00.
h. The Borrower shall have paid (or caused to be paid) to each Incremental Revolving Commitment Lender (i) the full amount of all fees required to be paid by the Borrower on or prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered Date pursuant to the Amendment No. 1 Fee Letter (as defined in Section 2(b) of this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for BorrowerAmendment), and (Bii) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas all reasonable and New York counsel to Borrower, addressed to documented or invoiced out-of-pocket costs of the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) expenses due and (b) of payable under the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably requireFee Letter.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the first date first written above (the “Third Amendment Effective Date”), upon the satisfaction ) on which each of the following conditions precedent:shall have been satisfied (or waived by the Third Amendment Revolving Lenders):
(a) The the Administrative Agent’s receipt Agent (or its counsel) shall have received a counterpart signature page of this Amendment duly executed by the followingParent Borrower, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statementsLoan Party party hereto, the date or period of such financial statements) Administrative Agent and each Third Amendment Revolving Lender (in form and substance reasonably satisfactory to each case including by way of Electronic Signatures (as defined below));
(b) the Administrative Agent:
Agent (or its counsel) shall have received a customary opinion from (i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel to the Loan Parties and (ii) M▇▇▇▇▇, Esq.N▇▇▇▇▇▇, General Counsel for Borrower, and (B) Arsht & T▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, in its capacity as special Texas and New York Delaware counsel to Borrowerthe Loan Parties, in each case, dated as of the Third Amendment Effective Date and addressed to the Administrative Agent and each Third Amendment Revolving Lender;
(vic) the Administrative Agent (or its counsel) shall have received (i) a certificate signed of each Loan Party, dated the Third Amendment Effective Date, substantially in the form of Exhibit C to the Existing Credit Agreement, with appropriate insertions and attachments, including without limitation (x) the certificate of incorporation (or equivalent) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and (y) a Responsible Officer true and complete copy of Borrower certifying its by-laws or operating, management, partnership or similar agreement (A) that the conditions specified or, in Section 4.02(aeach case of clauses (x) and (by) above, a certification that true and complete copies of the Credit Agreement such documents or agreements have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected previously attached to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as certificate delivered to the Administrative Agent may reasonably require.
(b) All consents, licenses under the Existing Credit Agreement and approvals required in connection with that such documents or agreements have not been amended except as otherwise attached to such certificate delivered to the execution, delivery and performance by Borrower and Administrative Agent on the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Third Amendment Effective Date (i) any event or condition that has had or could reasonably be expectedand certified therein as being the only amendments thereto as of such date), either individually or in the aggregate, to have a Material Adverse Effect, or and (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge a good standing certificate as of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any a recent date for each Loan Party from its relevant authority of its Subsidiaries or against any jurisdiction of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.organization;
(d) Any fees due each of the Lead Arrangerrepresentations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the Third Amendment Effective Date, Administrative Agent or any Lenderimmediately prior to and immediately after giving effect to this Amendment and the transactions contemplated hereby), including any arrangement feesas if made on and as of such date, agency fees and upfront fees, and any expenses incurred by except to the Lead Arranger and Administrative Agentextent expressly made as of an earlier date, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date which case such representations and warranties shall have been paid.so true and correct as of such earlier date;
(ei) Borrower shall have paid all costs, fees and expenses (including, without limitation, reasonable fees, charges and disbursements documented legal fees and expenses of counsel to the Administrative Agent) and other compensation required to be paid by the Parent Borrower in connection with this Amendment to the Administrative Agent and the Third Amendment Revolving Lenders shall have been paid or shall have been authorized to be deducted from the proceeds of the funding of any Revolving Loans borrowed on the Third Amendment Effective Date to the extent due and invoiced to the Parent Borrower (in the case of any such expenses, at least three Business Days prior to the Third Amendment Effective Date) and (ii) the Administrative Agent shall have received, for the account of each Existing RCF Lender, the Previously Accrued Amounts;
(f) the Administrative Agent (or its counsel) shall have received a Solvency Certificate dated as of the Third Amendment Effective Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Parent Borrower certifying as to the matters set forth therein;
(g) each Third Amendment Revolving Lender shall have received, at least three Business Days prior to the Third Amendment Effective Date, all documentation and other information about the Parent Borrower and the Guarantors that shall have been reasonably requested by such Third Amendment Revolving Lender in writing at least 10 Business Days prior to the Third Amendment Effective Date and that such Third Amendment Revolving Lender reasonably determines is required by United States bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least five days prior to the Third Amendment Effective Date, any Third Amendment Revolving Lender that has requested, in a written notice to the Parent Borrower at least 10 days prior to the Third Amendment Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) in relation to the Parent Borrower shall have received such Beneficial Ownership Certification;
(h) no Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the RCF Upsize and the other transactions contemplated by this Amendment and the Amended Credit Agreement; and
(i) the Administrative Agent shall have received a certificate of a Responsible Officer of the Parent Borrower certifying as to the matters referred to in clauses (d) and (h) of this Section 4. For purposes of determining compliance with whether the conditions specified in this §3.1Section 4 have been satisfied on the date hereof, each Lender that has signed by executing this Amendment, the Administrative Agent and the Third Amendment Revolving Lenders shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to or the proposed Third Amendment Effective Date specifying its objection thereto and Revolving Lenders, as the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentcase may be.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, and (B) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrowerthe Company, required to be paid on or before the Amendment Effective Date shall have been paid.
(ec) Borrower The Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §§ 3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower the Company with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Amendment Effective Date. This Amendment The obligations of the ------------------------- Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective as of until the date first written above (the “Amendment Effective Date”), upon the satisfaction on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statementsBorrowers, the date or period Required Lenders, the Administrative Agent, the Canadian Agent and the Documentation Agent either (i) a counterpart of this Agreement signed on behalf of such financial statementsparty or (ii) and each in form and substance reasonably written evidence satisfactory to the Administrative Agent:Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(ib) executed counterparts of this Amendment, sufficient in number for distribution The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, each Lender the Canadian Agent and Borrower;
(ii) if so requested within three Business Days prior to the Collateral Agents and the Lenders and dated the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (Ai) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Esq., General U.S. Counsel for Borrowerthe U.S. Borrowers and Subsidiary Guarantors, and (Bii) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Canadian counsel for the Canadian Borrower, and (iii) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇▇, special Texas Quebec counsel for the Canadian Borrower, substantially in the form of Exhibits ▇-▇, ▇-▇ and New York B-3 respectively, and covering such other matters relating to the Loan Parties, this Agreement, the other Loan Documents or the Transactions as the Required Lenders shall reasonably request. Each Borrower hereby requests such counsel to Borrowerdeliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, addressed existence and good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, this Agreement, the other Loan Documents and the Transactions, all in form and substance satisfactory to the Administrative Agent and each Lender;its counsel.
(vid) The Administrative Agent shall have received a certificate certificate, dated the Amendment Effective Date and signed by the President, a Responsible Vice President or a Financial Officer of Borrower certifying (A) that the Company or the relevant Loan Party, confirming compliance with the conditions specified set forth in Section 4.02(aparagraphs (a) and (b) of the Credit Agreement have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paidSection 4.02.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 The Administrative Agent shall have received notice from such Lender prior to the proposed Subsidiary Guarantee Agreement duly executed by all parties thereto.
(f) The Administrative Agent shall have received the Indemnity, Subrogation and Contribution Agreement duly executed by all parties thereto.
(g) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date specifying and signed by a Financial Officer of the Company, in form and substance reasonably satisfactory to the Lenders, confirming the solvency of the Company and its objection thereto Subsidiaries after giving effect to the initial Loans hereunder and the use of proceeds thereof.
(h) The Collateral Agents shall have received the Security Agreement, the Quebec Hypothec and the Bank Act Security duly executed by all parties thereto, together with the following:
(i) all documents and instruments, including Uniform Commercial Code financing statements or other appropriate filings, recordings or registrations required by all applicable law or reasonably requested by the Administrative Agent hereby agrees to promptly provide Borrower be filed, recorded or registered in order to create in favor of the Collateral Agents for the benefit of the Secured Parties and in favor of the Canadian Lenders, as applicable, a valid and perfected first priority security interest in and Lien on the Collateral (subject to any Lien expressly permitted by Section 6.02) described in the Security Agreement, the Quebec Hypothec and the Bank Act Security shall have been delivered to the Collateral Agents; and
(ii) a completed Perfection Certificate dated the Amendment Effective Date and signed by a Financial Officer and a legal officer of the Company, together with all attachments contemplated thereby, including the results of a copy search of any the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Collateral Agents that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been released.
(i) The Administrative Agent shall have received evidence satisfactory to it that the insurance required by Section 5.05 and the applicable provisions of the Security Agreement is in effect.
(j) The Administrative Agent shall have received all accrued interest (whether or not at the time due and payable), fees and other amounts outstanding or payable as of the Amendment Effective Date hereunder or under the Prior Agreement, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder. The Administrative Agent shall notify the Company and the Lenders in writing of the Amendment Effective Date, and such notice received by the Administrative Agentshall be conclusive and binding.
Appears in 1 contract
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a partyparty delivered pursuant to this §3.1;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(viv) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrower, Borrower and (B) ▇Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ L.L.P.US LLP, special Texas and New York counsel to the Borrower, addressed to the Administrative Agent and each Lender;
(viv) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, satisfied and (B) that there has been no event or circumstance since December 31, 2016 2014 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt RatingsEffect; and
(viivi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Plains All American Pipeline Lp)
Amendment Effective Date. This Amendment shall become effective as The effectiveness of this Agreement on the date first written above (the “Amendment Effective Date”), upon Date is subject to the satisfaction (or waiver in accordance with Section 8.02) of the following conditions precedent:
(a) The Administrative Agent’s receipt Lender (or its counsel) shall have received from each Borrower Party and the Security Trustee executed counterparts of this Agreement.
(b) The Lender shall have received from each Borrower Party, the Security Trustees and the FRBNY executed counterparts of the followingMortgage and all supplements thereto in a form sufficient to file with the FAA, each of which shall be originals, telecopies the International Registry and any other Governmental Authority where filing or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer registration of the BorrowerMortgage and any supplements thereto is required under Requirements of Law of the United States to perfect the Security Trustee’s security interest in, if applicableand Lien on, the Pool Aircraft and all other Aircraft Assets (as determined by the Required Persons in their sole discretion).
(c) The Lender shall have received a favorable written opinion (addressed to each Lender Party and the FRBNY and dated the Amendment Effective Date (or, in the case Date) of certificates each of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § 3.1 to which Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower, General Partner and GP LLC are duly organized or formed, and that Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇▇ Chance US LLP with respect to New York law, in-house counsel to the Parent Borrower with respect to California law and other matters, and A&L Goodbody with respect to Irish law, White & Case LLP with respect to French law and Zul ▇▇▇▇▇▇▇ & partners with respect to Malaysian law, each counsel for the Borrower Parties, substantially in the form of Exhibit ▇-▇▇, ▇-▇▇, ▇-▇▇, ▇-▇▇ and G-1E (as applicable) hereto as to such matters as any Lender Party or the FRBNY may request, including non-contravention of any indenture, agreement, mortgage, deed of trust or other instrument to which any Borrower Party is a party or by which it is bound or any of its properties are subject (including, but not limited to, any Lease), and (ii) Daugherty, Fowler, Peregrin, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, EsqA Professional Corporation, special FAA counsel to the Borrower Parties, substantially in the form of Exhibit G-2, and, in the case of each opinion required by this subsection, covering such other matters relating to the Borrower Parties, the Loan Documents, the Collateral or the transactions contemplated thereby as any Lender Party or the FRBNY shall reasonably request. The Borrower Parties requests such counsel to deliver such opinions.
(d) The Lender shall have received a Deposit Account Control Agreement with respect to each Collection Account, General Counsel in each case duly executed and delivered by the applicable Borrower Party, the Security Trustee and the applicable depositary bank.
(e) The Security Trustee shall have received UCC Financing Statements from each Borrower Party, naming such Borrower Party as debtor, naming the Security Trustee (for the benefit of the Secured Parties) as secured party and describing the applicable Collateral (such UCC Financing Statements to be satisfactory to the Security Trustee).
(f) The Lender shall have received such documents and certificates as the Required Persons or their respective counsel may reasonably request relating to the organization, existence and, if applicable, good standing of the Borrower Parties, the authorization of the transactions contemplated by the Loan Documents and any other legal matters relating to the Borrower Parties, the Loan Documents, the Collateral or the transactions contemplated hereby or thereby, all in form and substance satisfactory to the FRBNY and their counsel.
(g) The Lender shall have received a certificate, dated the Amendment Effective Date and signed by the President, a Vice President or a Financial Officer of the Parent Borrower, confirming compliance with the conditions set forth in clauses (m) and (Bn) of this Section 4.01.
(h) The Borrowers shall have paid all fees and other amounts due and payable to the Lender Parties and the FRBNY on or before the Amendment Effective Date, including, to the extent invoiced in reasonable detail, all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower Parties under the Loan Documents.
(i) The Security Trustee and the FRBNY shall have received the results of a recent Lien, tax and judgment search in each relevant jurisdiction, including without limitation the FAA registry and the International Registry with respect to each Borrower Party and the Collateral, revealing no Liens on any of the assets of any Borrower Party or the Collateral, other than Permitted Liens.
(j) All consents and approvals required to be obtained by the Borrower Parties from any Governmental Authority or other Person in connection with the transactions contemplated by the Loan Documents shall have been obtained, and all applicable waiting periods and appeal periods shall have expired, in each case without the imposition of any burdensome condition.
(k) The Lender shall have received evidence satisfactory to it and the FRBNY that each Borrower Party has delivered irrevocable instructions to each Applicable Obligor instructing it to pay all Collections in respect of any Lease in the future directly to a Collection Account.
(l) The Lender shall have received a certificate from the Chief Financial Officer of the Parent Borrower, in form and substance satisfactory to it and the FRBNY, with respect to the Borrower Parties, taken as a whole, corresponding to the representations in Section 3.16.
(m) The representations and warranties of the Borrower Parties contained in Article 3 of this Agreement and contained in each other Loan Document shall be true and correct on and as of the Amendment 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 as of such earlier date.
(n) Immediately after giving effect to the Loan, no Default shall have occurred and be continuing.
(o) Each of the Required Persons shall have received three Appraisals of each Pool Aircraft in form and substance satisfactory to it. Such Appraisals shall (i) have been conducted by a Qualified Appraiser prior to the Amendment Effective Date and (ii) show that the aggregate Appraised Value of all Pool Aircraft as of the Amendment Effective Date is sufficient to cause the Loan-to-Value Ratio to be less than or equal to 50%, after giving pro forma effect to the New Loan to be made on the Amendment Effective Date and the outstanding balance of the Loan.
(p) Each of the Required Persons shall have received evidence satisfactory to it that each of the Pool Aircraft are Owned by a Borrower as of the Amendment Effective Date.
(q) Each of the Required Persons shall have received evidence satisfactory to it that the Parent Borrower has received all waivers and/or amendments to its existing indentures, agreements, mortgage, deeds of trust and other instruments to which it is a party necessary to allow it to undertake the transactions contemplated by the Loan Documents.
(r) The Lender Parties and the FRBNY shall have received from each Borrower Party such supplements to the Mortgage, charges, consents, control agreements, Irish Mortgages, UCC Financing Statements and amendments and other similar instruments, agreements, certificates, documents and opinions of counsel as the Lender Parties or the FRBNY may reasonably request, together with evidence to their satisfaction that all necessary actions have been taken, in order to grant (i) the First Lien Security Trustee, for the benefit of the FRBNY, a first-priority security interest in, and Lien on, the Collateral (other than Aircraft Assets relating to the Required Pool Aircraft and the Supplemental Pool Aircraft), which shall secure the First Lien Secured Obligations (as defined in the Mortgage), (ii) the Third Lien Security Trustee, for the benefit of the FRBNY, a third-priority security interest in, and Lien on, the Collateral (other than Aircraft Assets relating to the Required Pool Aircraft and the Supplemental Pool Aircraft), which shall secure the Third Lien Secured Obligations (as defined in the Mortgage) and (iii) the Fourth Lien Security Trustee, for the benefit of the FRBNY, a fourth-priority security interest in, and Lien on, the Collateral (other than Aircraft Assets relating to the Required Pool Aircraft and the Supplemental Pool Aircraft), which shall secure the Fourth Lien Secured Obligations (as defined in the Mortgage) provided that only the Express Perfection Requirements shall be required to be satisfied; provided, further, that, for the purposes of this clause (r), Required Cape Town Registrations with respect to assignments of International Interests in Leases that are not registered on the International Registry as of the Amendment Effective Date shall be made within one month of the Amendment Effective Date.
(a) The First Lien Security Trustee, for the benefit of the FRBNY, shall have a first priority perfected security interest in the Collateral (other than Aircraft Assets relating to the Required Pool Aircraft and the Supplemental Pool Aircraft) (subject only to Permitted Liens) and (b) the Third Lien Security Trustee, for the benefit of the FRBNY, shall have a third priority perfected security interest in the Collateral (other than Aircraft Assets relating to the Required Pool Aircraft and the Supplemental Pool Aircraft) (subject only to Permitted Liens) (in each case, it being understood and agreed that, with respect to each Aircraft Asset, only the Express Perfection Requirements shall be required to be satisfied).
(t) The Lender Parties and the FRBNY shall have received a report from Simat Helliesen & ▇▇▇▇▇▇▇, Inc. in form and substance satisfactory to the Required Persons opining as to such matters as the Required Persons may require.
(u) The Lender shall have received copies of the Borrower Party Guarantee and the Charge Over Shares of the Irish Subsidiary Borrower, duly executed by each Borrower Party party thereto, together with all documents required to be delivered thereunder.
(v) The Lender shall have received a signed original of a Note with respect to the Loan, duly executed by each Borrower.
(w) The Required Persons shall have received evidence, in form and substance satisfactory to them, that the requirements of Section 60 of the Companies ▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrower, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Section 4.02(a) and (bas amended) of Ireland and the Credit Agreement analogous provisions of any other relevant jurisdiction in relation to financial assistance have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or complied with in full by the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Irish Subsidiary Borrower and the validity against Borrower of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 through and including Irish Initial Intermediate Lessee. Promptly after the Amendment Effective Date (i) any event or condition that has had or could reasonably be expectedoccurs, either individually or in the aggregateLender shall notify each Borrower Party, to have a Material Adverse Effect, or (ii) any action, suit, investigation, proceeding, claim or dispute pending or, to the knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead Arranger, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront feesSecurity Trustee, and any expenses incurred by the Lead Arranger FRBNY thereof, and Administrative Agent, in each case, as agreed in writing by Borrower, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment such notice 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto conclusive and the Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice received by the Administrative Agentbinding.
Appears in 1 contract
Sources: Credit Agreement (International Lease Finance Corp)
Amendment Effective Date. This Amendment shall become effective as of the date first written above (the “Amendment Effective Date”), upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, if applicable, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment Effective Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) if so requested within three Business Days prior to the Amendment Effective Date, a Note executed by each Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower 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 delivered pursuant to this § §3.1 to which Borrower such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrowereach Loan Party, General Partner and GP LLC are is duly organized or formed, and that each of the Company and each Designated Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel for Borrowerthe Company and PMCULC, and (B) Fulbright & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special Texas and New York counsel to Borrowerthe Company and PMCULC and (C) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, special Canadian counsel to PMCULC, addressed to the Administrative Agent and each Lender;
(vi) the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal years ended December 31, 2010, December 31, 2011 and December 31, 2012, and the related consolidated statements of income or operations and cash flows for such fiscal years and partners’ capital of the Company and its Subsidiaries, including the notes thereto, and (B) the pro forma financial projections and forecasts of the Company and its Subsidiaries prepared by or at the direction of the Company and delivered by the Company to the Administrative Agent for the second half of the fiscal year ending December 31, 2013 and for the fiscal years ending December 31, 2014 and December 31, 2015;
(vii) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Section 4.02(a) and (b) of the Credit Agreement have been satisfied, (B) the projections and forecasts described in §3.1(a)(vi)(B) of this Amendment were prepared in good faith upon assumptions deemed reasonable by the Company at the time made, (C) that there has been no event or circumstance since December 31, 2016 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect, and (CD) the current Debt Ratings; and
(viiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by Borrower each Loan Party and the validity against Borrower each Loan Party of this Amendment and each of the other Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from December 31, 2016 2012 through and including the Amendment Effective Date (i) any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or (ii) any action, suit, investigation, proceeding, claim or dispute disputes pending or, to the knowledge of Borrowerthe Company, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower the Company or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Any fees due the Lead ArrangerArrangers, Administrative Agent or any Lender, including any arrangement fees, agency fees and upfront fees, and any expenses incurred by the Lead Arranger Arrangers and Administrative Agent, in each case, as agreed in writing by Borrowerthe Company, required to be paid on or before the Amendment Effective Date shall have been paid.
(e) Borrower The Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Amendment Effective Date. For purposes of determining compliance with the conditions specified in this §3.1, each Lender that has signed this Amendment 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 notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide Borrower the Company with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract