Conditions. This Amendment shall become effective upon the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”): (a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders. (b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. (c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect. (d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower. (e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date. (f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent. (g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment. (h) The representations and warranties set forth in Section 4 hereof shall be true and correct. (i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment). (j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 2 contracts
Sources: Credit Agreement (NOODLES & Co), Securities Purchase Agreement (NOODLES & Co)
Conditions. This Amendment The effectiveness of this Agreement shall become effective be conditioned upon the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):following:
(a) This Amendment The following documents shall have been duly authorized and executed by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Borrower shall have delivered original counterparts thereof to the Agent:
(i) this Agreement, duly executed and delivered by each Loan Partythe Borrower, the Administrative Agent and the LendersBanks constituting Majority Banks;
(ii) the certificate of the secretary or assistant secretary of the Borrower certifying as to the incumbency and genuineness of the signature of each officer of such Person executing Loan Documents to which it is a party and certifying that: (A) the articles of incorporation of such Person have not been amended, modified or repealed since the date delivered to the Agent, (B) the by-laws of such Person have not been amended, modified or repealed since the date delivered to the Agent, and (C) attached thereto is true, correct and complete copy of resolutions duly adopted by the Board of Directors of such Person authorizing the execution and delivery of this Agreement, the docHarbor Pledge Agreement and the docHarbor Security Agreement;
(iii) an initial 13-week cash flow projection (the "Initial Cash Flow Projection") for the Borrower and its Domestic Subsidiaries dated as of November 8, 2000 in form and substance satisfactory to the Agent and Majority Banks attached hereto as Exhibit I;
(iv) the docHarbor Budget in form and substance satisfactory to the Agent and Majority Banks; and
(v) such other documents, certificates and instruments as the Agent reasonably requests.
(b) The Administrative All filings and recordations that are necessary to perfect the security interests of the Banks in the property pledged as collateral pursuant to the various Security Documents shall have been received by the Agent and the Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions evidence satisfactory to Agent, that upon such filings and recordations, such security interests constitute valid and perfected first priority security interests and liens therein, subject only to Permitted Liens entitled to priority under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectapplicable law.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfiedSince September 15, and (ii) that there has been 2000, no event or circumstance since December 29which has had, 2015 that has had or could reasonably be reasonably expected to have, either individually or a material adverse effect has occurred, except as a previously disclosed in writing to the aggregate, a Material Adverse EffectAgent.
(d) The Administrative Agent Borrower shall have received a certificate attesting paid, or otherwise reimbursed the Banks for, the outstanding fees and expenses of the Bank Financial Consultant and the Agent's legal counsel presented to the Solvency Borrower up through the date of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the BorrowerAgreement.
(e) The Administrative Agent Borrower shall have received an executed copy of an agreement by make a Sponsor Investor, in form and substance reasonably acceptable prepayment to the Administrative Agent, to purchase Qualified Securities Agent and the Banks in the Borrower for not less than amount of $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement 1,000,000.00 which shall be in form and substance acceptable applied to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain repayment of the text shown as unmarked text Existing Extensions of Credit in Exhibit A to the Fourth Amendment is not, manner and has never been, effectively part in the order set forth in Section 3.2 of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 2 contracts
Sources: Forbearance and Standstill Agreement (Anacomp Inc), Forbearance and Standstill Agreement (Anacomp Inc)
Conditions. This Amendment shall become effective upon In addition to any other conditions set forth herein or required by Lender, the satisfaction following are conditions precedent that must be satisfied prior to the closing of the following conditions precedent no later than February 9, 2017 Transfer and Assumption (the “Fifth Amendment Effective DateClosing”):
(a) This Amendment shall have been duly executed The execution, acknowledgment, delivery and delivered recordation of this Agreement by each Loan Partyall of the parties concurrently with the Closing, and the execution, acknowledgement and delivery of all other agreements, instruments and documents required by Lender hereunder concurrently with and in connection with the Closing, including but not limited to the following (collectively, the Administrative Agent “Supplemental Loan Documents”): (i) a new Guaranty Agreement from Buyer Principal in substantially the same form as the Guaranty (the “New Guaranty”) (ii) a new Environmental Indemnity Agreement in substantially the same form as the Environmental Indemnity from Buyer and Buyer Principal (the Lenders“New Environmental Indemnity”) (iii) a new Assignment of Management Agreement and Subordination of Management Fees from Inland National Real Estate Services, LLC, a Delaware limited liability company (the “Manager”), Lender and Buyer in substantially the same form as the Assignment (the “New Assignment”), and (iv) a new Joinder Agreement from Buyer Principal in substantially the same form as the Joinder (the “New Joinder”).
(b) The Administrative Agent shall have received certificates executed execution, delivery and recordation or filing, as applicable, of one more new financing statements, or amendments to existing financing statements as required by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectLender at Closing.
(c) The Administrative Agent shall have received a certificate signed Buyer’s delivery to Lender of satisfactory evidence that all insurance over the Property required by a Responsible Officer the Loan Documents (the “Required Insurance”) is in full force and effect as of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfiedClosing, with all required premiums paid, and contains a mortgagee’s clause (iithe “Mortgagee’s Clause”) that there has been no event or circumstance since December 29satisfactory to Lender in favor of Lender, 2015 that has had or could be reasonably expected to haveits successors and/or assigns, either individually or in the aggregatec/o Midland Loan Services, a Material Adverse EffectMaster Servicer, 10851 ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇; re: Loan Number 030286910.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency Lender’s receipt of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrowersatisfactory Title Endorsements (hereinafter defined).
(e) The Administrative Agent shall have received an executed copy full release and reconveyance of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to any other liens or monetary encumbrances against the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective DateProperty.
(f) The Administrative Agent shall have received Lender’s receipt of all of the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings Required Payments (2017hereinafter defined)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, satisfaction of all other conditions contained in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of approval letter issued by the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred Lender in connection with this Amendment, including, without limitation, the reasonable fees Transfer and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Assumption.
Appears in 2 contracts
Sources: Consent and Assumption Agreement, Consent and Assumption Agreement (Inland Real Estate Income Trust, Inc.)
Conditions. This Amendment 4.1 Completion shall become effective be conditional upon the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Conditions”) being satisfied or waived in writing by the Buyer and the Founders on or before 6.00 p.m. on the Longstop Date:
4.1.1 the receipt by the Buyer or any Group Company, in writing, of an unconditional clearance decision in respect of the proposed acquisition of the Shares by the Buyer pursuant to the terms of this Agreement from the UK’s Competition and Markets Authority (“CMA”):) at the end of the CMA’s Phase 1 Investigation (the “Merger Control Condition”); and
4.1.2 each of the JV Conditions.
4.2 The Buyer shall use all reasonable endeavours to procure that the Merger Control Condition is satisfied as soon as possible after the date of this Agreement.
4.3 The Buyer and the Founders shall use their respective reasonable endeavours to procure that the JV Conditions are satisfied as soon as possible after the date of this Agreement.
4.4 The Founders shall as soon as reasonably practicable, notify the Buyer of any material communication received from the CMA relating to the Merger Control Condition, and the Buyer shall, as soon as reasonably practicable, notify the Founders of any material communication received from the CMA, in each case subject to applicable Laws.
4.5 The Founders shall, and shall procure that the Group Companies shall:
4.5.1 promptly provide such assistance as may reasonably be required, or requested by the Buyer, in relation to the Merger Control Condition, including through the provision of all information and responses requested by the Buyer or the Buyer’s Solicitors in connection with the Merger Control Condition as soon as practicable; and
4.5.2 provide the Buyer with the responses to any request for information from the CMA in advance of any relevant time limit where reasonably practicable, including any time limit set by the Buyer for such responses.
4.6 If at any time the Founders or the Buyer becomes aware of any event, circumstance or condition that would be reasonably likely to prevent any of the Conditions being satisfied it or they shall promptly inform the other party or parties (a) This Amendment as applicable).
4.7 The Buyer and the Founders shall notify each other promptly upon it or them becoming aware that any of the Conditions have been duly executed and delivered satisfied.
4.8 If the Conditions are not satisfied or waived by each Loan Party, the Administrative Agent Founders and the LendersBuyer on or before 6.00 p.m. on the Longstop Date, this Agreement shall, subject to clause 4.9, automatically terminate with immediate effect.
4.9 Each party’s further rights and obligations under this Agreement shall cease immediately upon such termination of this Agreement pursuant to clause 4.8 except in respect of the provisions of clauses 10, 13, 16 and 18 to 32 (b) inclusive), together with any other provisions of this Agreement necessary for its interpretation or enforcement which will continue in full force and effect, provided always that such termination does not affect a party’s accrued rights, liabilities and obligations prior to and as at the date of termination.
4.10 The Administrative Agent Founders shall have received certificates executed by a Responsible Officer of each Loan Party attaching each, on the same date, transfer their respective DOGL Shares to DOL pursuant to the DOGL SPA prior to both (i) resolutions the satisfaction or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies waiver of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, Conditions and (ii) the exercise of the Options, and procure that there has been no event or circumstance since December 29an application for relief, 2015 that has had or could be reasonably expected under section 77 Finance ▇▇▇ ▇▇▇▇, from UK stamp duties is made to have, either individually or HMRC in the aggregate, a Material Adverse Effectrespect thereof within 5 Business Days of such transfers.
(d) 4.11 The Administrative Agent shall have received a certificate attesting Founders undertake to the Solvency of the Loan Parties use all reasonable efforts to obtain Tax Clearance on a consolidated basis before terms and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance conditions reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of Sellers reflecting the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth transaction described in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Nbty Inc), Share Purchase Agreement (Alphabet Holding Company, Inc.)
Conditions. This Amendment shall become effective upon (a) Subject to Section 4.4, the satisfaction following are conditions to the consummation of the following conditions precedent no later than February 9Distribution (which, 2017 (to the “Fifth Amendment Effective Date”extent permitted by applicable Law, may be waived, in whole or in part, by NCR in its sole discretion):
(ai) This Amendment The Registration Statement shall have been duly declared effective by the SEC and shall be subject to no further comment, no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no Proceedings for that purpose will be pending before or threatened by the SEC;
(ii) The ATMCo Common Stock to be delivered to the NCR stockholders in the Distribution shall have been accepted for listing on the NYSE, subject to official notice of distribution;
(iii) NCR shall have obtained an opinion from each of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, tax counsel to NCR, and Ernst & Young, LLP, tax advisor to NCR, in form and substance satisfactory to NCR (in its sole discretion), substantially to the effect that, among other things, the Distribution, together with certain related transactions, will qualify as a transaction that is generally tax-free for U.S. federal income tax purposes under Sections 368(a)(1)(D), 361 and 355 of the Code;
(iv) An independent appraisal firm acceptable to NCR shall have delivered one (1) or more opinions to the NCR Board confirming that, immediately following the Distribution (A) each of NCR and ATMCo will be able to pay its indebtedness as its indebtedness becomes due in the ordinary course of business and (B) the fair value of each of NCR’s and ATMCo’s respective assets will be greater than the sum of, as applicable, NCR’s or ATMCo’s respective stated liabilities and certain identified contingent liabilities (plus, with regard to NCR, the amount, if any, that would be needed, if NCR was dissolved at the time of Distribution, to satisfy the preferential rights upon dissolution of the holders of shares of Series A Convertible Preferred Stock of NCR, $0.01 par value per share), and such opinions shall be acceptable to the NCR Board in form and substance in the NCR Board’s sole discretion and such opinions shall not have been withdrawn or rescinded;
(v) Each of NCR and ATMCo shall have received any necessary permits, registrations and consents under the securities or “blue sky” Laws of states or other political subdivisions of the United States (and any comparable Laws under any foreign jurisdiction) in connection with the Distribution and all such permits and authorizations shall be in effect;
(vi) No order, injunction or decree issued by any court or arbitral authority of competent jurisdiction shall have been entered and shall continue to be in effect and no other Law or other legal restraint or prohibition shall have been adopted or be effective preventing the consummation of the Separation, Distribution or any of the related transactions contemplated herein;
(vii) The portion of the Internal Reorganization Plan to be effectuated prior to the Distribution shall have been effectuated, including the execution of all such instruments, assignments, documents and other agreements necessary to effect such portion of the Internal Reorganization Plan;
(viii) The NCR Board shall have declared the Distribution and approved all related transactions (and such declaration or approval shall not have been withdrawn);
(ix) Any material Governmental Approvals and Consents from Governmental Authorities, in each case, necessary to effect the transactions contemplated by the Internal Reorganization Plan or the Distribution shall have been obtained and be in full force and effect;
(x) The financing for the ATMCo Financing Arrangements shall be available on terms acceptable to NCR and ATMCo shall have completed the ATMCo Financing Arrangements and received the proceeds in respect thereof and ATMCo shall have (A) issued to NCR the Debt-for-Debt Indebtedness, (B) completed the Debt Proceeds Distribution and (C) and completed the NCR Intercompany Loan Repayment;
(xi) The Information Statement or notice of internet availability of the Information Statement shall have been mailed to the holders of record of NCR Common Stock as of the close of business on the Record Date;
(xii) Each Ancillary Agreement shall have been executed and delivered by each Loan Partyparty to such agreement; and
(xiii) No event or development shall have occurred or exist that, in the judgment of the NCR Board, in its sole discretion, makes it inadvisable to effect the Separation, the Administrative Agent Distribution or the other related transactions (including with respect to the incurrence of Indebtedness necessary to complete the Separation and the LendersDistribution).
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation 4.5 are for the sole benefit of NCR and shall not give rise to or create any duty on the part of NCR or the NCR Board to waive or not waive any such summary statement is provided promptly thereafter)condition. Any determination made by NCR prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 4.5 shall be conclusive and binding on the Parties hereto.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (NCR Atleos, LLC), Separation and Distribution Agreement (NCR ATMCo, LLC)
Conditions. This Amendment shall become effective upon the satisfaction 4.1 The obligation of the following Lessor to lease the Aircraft to the Lessee under this Agreement is subject to the condition that, on or prior to Delivery, the Lessor shall have received the documents and evidence specified in Parts 1 and 2 of schedule 1 in form and substance satisfactory to the Lessor.
4.2 The obligation of the Lessor to lease the Aircraft to the Lessee under this Agreement is subject to the further conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):that:-
(a) This Amendment the Aircraft shall have been duly executed and delivered by each Loan Party, to the Administrative Agent Lessor and the Lenders.Lessor shall have received a bill of sale from the Lessee dated the Delivery Date;
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions all necessary governmental and other third party consents or other action authorizing approvals required to permit the actions under this Amendment and Lessor to lease the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of Aircraft to the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there Lessee shall have been no changes to received by the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.Lessor;
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer the representations and warranties of the Borrower certifying (i) that the conditions specified Lessee set out in this Section 5 have been satisfied, clause 2.1 and in the Aircraft Purchase Agreement and (ii) that there has been no event or circumstance since December 29SAS BV set out in clause 2.2, 2015 that has had or could be reasonably expected are true and correct as if each were made with respect to have, either individually or in the aggregate, a Material Adverse Effect.facts and circumstances existing immediately prior to the time when Delivery is to take place;
(d) The Administrative Agent the Lessor shall have received a certificate attesting to the Solvency an appraisal of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer fair market value of the Borrower.Aircraft performed by Aircraft Information Services, Inc. which the Lessor, notwithstanding the terms of this clause 4.2, acknowledges and confirms it has received and that such appraisal is acceptable to it in form and substance;
(e) The Administrative Agent no Relevant Event shall have occurred and be continuing or would arise by reason of Delivery taking place; and
(f) the Lessor shall have received an executed copy written notice from the Lessee at least one (1) Banking Day prior to Delivery specifying the Delivery Date, the serial numbers of an agreement by a Sponsor Investorthe Engines being delivered pursuant to the Aircraft Purchase Agreement and confirming the amount of the instalments of Rent to be paid pursuant to clause 7.1(a).
4.3 The obligation of the Lessee to take the Aircraft on lease under this Agreement is subject to the condition that, prior to Delivery, the Lessee shall have received the documents and evidence specified in Part 3 of schedule 1 in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain Lessee.
4.4 The obligation of the text shown as unmarked text in Exhibit A Lessee to take the Aircraft on lease under this Agreement is subject to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.further conditions that:
(ha) The the representations and warranties set forth of the Lessor in Section 4 hereof clauses 2.3, 2.4, 6.1 and 6.2 shall be true and correct.correct as if each was made with respect to the facts and circumstances existing immediately prior to the time when Delivery is to take place;
(ib) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid no Total Loss or Engine Loss shall have occurred on or before the Fifth Amendment Effective Date pursuant prior to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, Delivery;
(c) Delivery shall have been paid (or shall be paid concurrently with the closing of this Amendment)occurred.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 2 contracts
Sources: Aircraft Lease Agreement (Semele Group Inc), Aircraft Lease Agreement (Afg Investment Trust D)
Conditions. This Amendment Agreement shall become effective upon as of the satisfaction first date (the “2017 Refinancing Effective Date”) when each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):shall have been satisfied:
(a) This Amendment the Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Party, the Refinancing Term Lender and the Administrative Agent and (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Lenders.Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(b) The the Administrative Agent shall have received certificates (i) any required notice of prepayment of Term B Loans pursuant to Section 2.10(d) of the Credit Agreement and (ii) any required notice of borrowing of Refinancing Term Loans pursuant to Section 2.03 of the Credit Agreement; provided, in each case, that such notice of prepayment and notice of borrowing shall be delivered in accordance with the time periods specified in Sections 2.10(d) and 2.03, as applicable, of the Credit Agreement or such shorter period as the Administrative Agent may agree;
(c) the representations and warranties set forth in Section 4 above shall be true and correct as of the date hereof;
(d) the Administrative Agent shall have received a certificate, dated the 2017 Refinancing Effective Date and executed by a Responsible Officer of the Borrower, confirming the accuracy of the representations and warranties set forth in Section 4 above;
(e) the Administrative Agent shall have received, on behalf of itself and the Refinancing Term Lender, a favorable written opinion of (A) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, as New York and Delaware special counsel for the Loan Parties and (B) McGuireWoods LLP, as Florida and Georgia counsel for the Loan Parties, in each Loan Party attaching case (i) resolutions or other action authorizing dated the actions under this Amendment and the Credit Agreement as amended herebydate hereof, (ii) incumbency certificates, addressed to the Administrative Agent and the Refinancing Term Lender and (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging Agent and agreeing covering such other matters relating to this Agreement as the Administrative Agent shall reasonably request;
(f) the Administrative Agent shall have received customary closing certificates and documentation consistent with those delivered on the Closing Date and such additional customary documents and filings as the Administrative Agent may reasonably require to assure that certain the Refinancing Term Loans contemplated hereby are secured by the Collateral ratably with the existing Revolving Facility Loans;
(g) the payment of the text shown as unmarked text in Exhibit A Term B Loan Repayment Amount by the Borrowers to the Fourth Amendment is not, and has never been, effectively part Administrative Agent for the accounts of the Credit Agreementexisting Term B Lenders, despite as a scrivener’s error which included at least part voluntary prepayment in full of the Term B Loans outstanding on the 2017 Refinancing Effective Date, shall occur simultaneously with the Borrowing of such text as unmarked text in Exhibit A to the Fourth Amendment.Refinancing Term Loans; and
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All any fees and reasonable out-of-pocket expenses due (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) owing by the Borrower to the Administrative Agent and invoiced prior to the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, date hereof shall have been paid in full (or shall be paid concurrently with in the closing case of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented any such fees and reasonable out-of-pocket charges and other expenses incurred in connection with this AmendmentAgreement or the Term B Loan Financing, including, without limitation, the reasonable fees and disbursements of counsel for subject to any agreed-upon limits contained in any letter agreement with the Administrative Agent, to Agent or its affiliates entered into in connection with this Agreement or the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafterTerm B Loan Refinancing).
Appears in 2 contracts
Sources: Incremental Assumption Agreement and Amendment No. 4, Incremental Assumption Agreement and Amendment No. 4 (Presidio, Inc.)
Conditions. This Amendment shall become effective upon The Company agrees that it will not accept any Notes tendered in the Exchange Offer until the satisfaction of the following conditions precedent no later than February 9(each a "Condition" and collectively, 2017 (the “Fifth Amendment Effective Date”):
"Conditions"): (a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) validly tendered and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for withdrawn not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to 60% in the definition aggregate principal amount due at maturity of “Identified Restaurant Closures/Re-Franchisings the 2005 Notes outstanding on the date of the expiration of the Exchange Offer (2017the "Minimum Condition")” in ; (b) the Credit Agreement which shall be in form and substance acceptable to preparation and, as appropriate, the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementdissemination, in form and substance reasonably satisfactory to the Administrative AgentRequired Noteholders, acknowledging of offering documents necessary to implement the Exchange Offer and agreeing the transactions contemplated by the Term Sheet in accordance with the terms of such Term Sheet; (c) the Indenture Amendments shall have become effective in a form substantially similar to that certain attached to the Term Sheet; (d) the Third Amendment to Senior Credit Agreement shall have become effective in a form substantially similar to that attached to the Term Sheet; (e) the Series C Certificate of Designation in a form substantially similar to that attached to the Term Sheet shall have been filed with the Delaware Secretary of State; (f) a new independent director designated in writing by the Required Noteholders and reasonably acceptable to the existing board of directors of the text shown as unmarked text in Exhibit A Company shall have been added to the Fourth Amendment is not, and has never been, effectively part board of directors of the Company; (g) the Company shall have executed and delivered the New Notes Credit Agreement, despite the Intercreditor Agreement and the Registration Rights Agreement, each in a scrivener’s error which included at least part of such text as unmarked text in Exhibit A form substantially similar to those attached to the Fourth Amendment.
attached Term Sheet; (h) The representations the Company shall have executed and warranties set forth delivered the New Notes Security Documents in Section 4 hereof shall be true and correct.
a form reasonably acceptable to the Required Noteholders; (i) All fees and expenses due and owing there shall not have been any action taken, or any statute, rule, regulation, judgment, order, stay, decree or injunction promulgated, enacted, entered, enforced with respect to the Administrative Agent and Exchange Offer, the Lenders and required exchange of 2005 Notes or 2008 Notes for the applicable consideration pursuant to be paid on the Exchange Offer, the Consent Solicitation or the Indenture Amendments by or before any court or governmental regulatory or administrative agency or authority, tribunal, which prohibits the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as making of February 8the Exchange Offer, 2017 by the Consent Solicitation, the Indenture Amendments or the exchange of 2005 Notes or 2008 Notes for the applicable consideration or would, directly or indirectly, prohibit, prevent, restrict or materially delay consummation of, or would otherwise adversely affect in any material manner, the Exchange Offer, the Consent Solicitation, the Indenture Amendments or the exchange of 2005 Notes or 2008 Notes for the applicable consideration; and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent there shall not have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, includingany Material Adverse Change. The Company may not, without limitationthe written consent of the Required Noteholders, waive the Minimum Condition or any of the other Conditions. In addition to the Conditions, the reasonable fees and disbursements Company agrees that it will not accept any Notes tendered by the Noteholders unless the Company has delivered to the Noteholders a written opinion of counsel for the Administrative Agent, to the extent documented prior to or on Company in the date hereof (for form approved by the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Required Noteholders.
Appears in 2 contracts
Sources: Support Agreement (Salton Inc), Support Agreement (Salton Inc)
Conditions. This Amendment shall become effective upon The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent no later than February 9(except those conditions, 2017 (the “Fifth Amendment Effective Date”if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) This Amendment The Project Credit Facilities and the Project Loan Documents shall have been duly executed and delivered approved by each Loan Party, the Administrative Agent Management Committee and the LendersProject Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) The Administrative Agent All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received certificates executed by the Construction/Term Lender as a Responsible Officer condition to the funding of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment Construction/Term Facility and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there Revolving Facility shall have been no changes delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to the Organization Documents of such Loan Party since August 2, 2016) Cogentrix GP and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectCogentrix LP.
(c) The Administrative Agent contribution by VF Delaware contemplated by Section 3.1(a) shall have received a certificate signed by a Responsible Officer been made to the satisfaction of the Borrower certifying (i) that the conditions specified in this Section 5 Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected provided to have, either individually or in the aggregate, a Material Adverse Effectthem by VF Delaware.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed following representations or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) All fees Each of VF and expenses due VF Delaware (A) is a limited liability company duly organized, validly existing and owing to in good standing under the Administrative Agent laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the Lenders legal right to incur the obligations provided for in this Agreement, and required (C) has taken all necessary action to be paid on or before authorize the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as execution, delivery and performance of February 8, 2017 by and among the Administrative Agent this Agreement and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)Project Documents and Project Loan Documents to which it is a party.
(jii) The Administrative Agent shall This Agreement and the Project Documents and Project Loan Documents to which it is a party have been reimbursed for all reasonable duly authorized, executed and documented fees delivered by VF Delaware and out-of-pocket charges VF and other expenses incurred constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in connection accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this AmendmentAgreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the reasonable fees assignment of the Project Documents and disbursements of counsel for the Administrative Agent, Project Assets to the extent documented prior Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or on its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(for the avoidance of doubt, a summary statement of such fees, charges and disbursements e) The following representations or warranties shall be sufficient documentation for true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations set forth provided for in this Section 5(jAgreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained); provided that supporting documentation for such summary statement , or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is provided promptly thereafter)not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Cogentrix Energy Inc), Limited Partnership Agreement (Ecoscience Corp/De)
Conditions. This The effectiveness of Article II of this Amendment shall become effective upon is subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Administrative Agent shall have been received this Amendment duly executed and delivered by each Loan Partythe Borrower, the Administrative Agent Guarantors and the Lenders.Banks and each Bank shall have receive a new Note in the amount of its Commitment in effect after giving effect to this Amendment if such Commitment amount is different then the principal amount of its existing Note;
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications certificates as the Administrative Agent or its counsel may reasonably require request relating to evidence that each Loan Party is duly organized or formedthe organization, existence and that each Loan Party is validly existing, in good standing of Borrower and qualified the Guarantors, the authorization of this Amendment, the Notes and the transactions contemplated hereby and any other legal matters relating to engage this Amendment reasonably requested by the Administrative Agent, all in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except form and substance satisfactory to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.Administrative Agent and its counsel;
(c) The Administrative Agent representations and warranties contained herein and in all other Loan Documents, as amended hereby, shall have received a certificate signed by a Responsible Officer be true and correct in all material respects as of the Borrower certifying (i) that date hereof as if made on the conditions specified in this Section 5 have been satisfieddate hereof, except for such representations and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected warranties limited by their terms to have, either individually or a specific date and the representations and warranties in the aggregate, a Material Adverse Effect.first sentence of Section 4.15(b) which shall be deemed made as of the Effective Date;
(d) The Administrative Agent shall have received receipt by each Bank of a certificate attesting fee equal for each Bank to the Solvency its Applicable Percentage of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.$62,500;
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form all fees due and substance reasonably acceptable payable on or prior to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds effective date of such issuance no later than the Fifth Amendment Effective Date.this Amendment;
(f) The Administrative Agent No Default shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.exist; and
(g) The Administrative Agent All proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall have received an agreeement, in form and substance reasonably be satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8its legal counsel, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)Hunton & ▇▇▇▇▇▇▇▇ LLP.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Elizabeth Arden Inc)
Conditions. This The effectiveness of this Amendment shall become effective upon the is subject to satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This Amendment The Borrowers shall have been duly executed and delivered to the Collateral Agent (or shall have caused to be executed and delivered to the Collateral Agent by the appropriate Persons), the following, in each case in form and substance satisfactory to the Collateral Agent:
(i) an amended and restated Secured Revolving Credit Note payable to the order of each of the Lenders, in the original principal amount equal to such Lender’s Revolving Credit Commitment;
(ii) an amendment to the Subordination Agreement acknowledging and permitting the increased Aggregate Revolving Credit Commitments;
(iii) Certified copies (attached as required in Part A of the form attached as Schedule 3.01 to the Credit Agreement) of all corporate or other action taken by each Borrower and the Equity Holders of each Borrower authorizing the execution and delivery of the Notes to which it is a party (including all resolutions authorizing the execution, delivery and performance of this Amendment by such Borrower and the transactions contemplated hereby, the incurrence of the Obligations and the granting of the Liens contemplated by the Loan PartyDocuments to which it is a party, to the extent required by the Organizational Documents applicable thereto) which have been properly adopted and have not been modified or amended;
(iv) Such other supporting documents and certificates as the Collateral Agent, the Administrative Agent and Agent, or the LendersLenders may reasonably request.
(b) The Administrative Collateral Agent shall have received certificates executed by a Responsible Officer the favorable written opinion of general corporate counsel to the Borrowers dated as of the date hereof, addressed to the Collateral Agent, the Administrative Agent, and Lenders and reasonably satisfactory to the Collateral Agent in scope and substance; and
(c) The representations and warranties of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment Borrower and its Affiliates set forth in the Credit Agreement Agreement, as amended hereby, (ii) incumbency certificates, (iii) certified copies and in the other Loan Documents shall be true and correct in all material respects on and as of the Organization Documents effective date of such Loan Party, in this Amendment and each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there Borrower shall have performed all obligations which were to have been no changes performed by it hereunder prior to the Organization Documents effective date of such Loan Party since August 2, 2016this Amendment (unless waived by the Collateral Agent or the Required Lenders).
(d) and (iv) such other documents and certifications as As of the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedeffective date of this Amendment, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation since the dates of properties or the conduct of its business requires such qualification, except those certain Projections attached as Schedule 4.17 to the extent that failure Credit Agreement and other financial documents delivered to do so the Collateral Agent prior thereto, no event or circumstance shall have occurred which could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 2 contracts
Sources: Credit Agreement (Coconut Palm Acquisition Corp.), Credit Agreement (Coconut Palm Acquisition Corp.)
Conditions. This Amendment Agreement shall become be effective on the date hereof upon the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This Amendment The Administrative Agent shall have received counterparts of this Agreement, which collectively shall have been duly executed and delivered by each on behalf of the Borrower, the other Loan PartyParties, the Administrative Agent Agent, the Lenders, the L/C Issuer, and the LendersSwing Line Lender.
(b) The Administrative Agent shall have received certificates a Note executed by a Responsible Officer the Borrower in favor of each Loan Party attaching Lender that has requested a Note at least two (i2) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies Business Days in advance of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectFirst Amendment Effective Date.
(c) The Administrative Agent shall have received a certificate signed by such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer of the Borrower certifying (i) that the conditions specified in connection with this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectAgreement.
(d) The Administrative Agent shall have received a certificate attesting from a Responsible Officer of the Borrower certifying as to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrowerrepresentations set forth in Section 4(b).
(e) The Administrative Agent shall have received an executed copy a solvency certificate from the chief financial officer, chief accounting officer or other officer with duties of an agreement by a Sponsor Investor, in form and substance reasonably acceptable the Borrower (after giving effect to the Administrative Agent, to purchase Qualified Securities this Agreement) substantially in the Borrower for not less than $18,500,000 in gross cash proceeds and form Solvency Certificate delivered on the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Closing Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable an opinion from ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Administrative AgentLoan Parties, in customary form.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory a duly executed Committed Loan Notice with respect to the Administrative Agent, acknowledging and agreeing that certain of Credit Extension to occur on the text shown as unmarked text in Exhibit A to the Fourth First Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth AmendmentEffective Date (if any).
(h) The representations Administrative Agent shall have received, at least two (2) days prior to the First Amendment Effective Date, (i) all documentation and warranties set forth other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been requested by the Administrative Agent in Section 4 hereof shall be true writing at least ten (10) days prior to the First Amendment Effective Date and correct(ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification for the Borrower, in each case, that has been requested by the Administrative Agent or any Lender in writing at least ten (10) Business Days prior to the First Amendment Effective Date.
(i) All fees and expenses due and owing The Borrower shall have repaid a portion of the Term A Loans outstanding under the Existing Credit Agreement immediately prior to the Administrative Agent and the Lenders and required to be paid on or before the Fifth First Amendment Effective Date pursuant (which such repayment may be made using Revolving Credit Loans on the First Amendment Effective Date) in an amount equal to that certain Fifth the difference between the aggregate principal amount of the Term A Loans outstanding immediately prior to the First Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent Effective Date and the Borrower, shall have been paid (or shall be paid concurrently with aggregate principal amount of the closing of this Amendment)Term A Commitments on the First Amendment Effective Date.
(j) The Borrower shall have paid all accrued interest and fees outstanding under the Existing Credit Agreement immediately prior to the First Amendment Effective Date (which such accrued interest and fees may be paid using Revolving Credit Loans on the First Amendment Effective Date).
(k) The Borrower shall have paid to the Administrative Agent shall have been reimbursed for all reasonable and documented fees and expenses due from the Borrower (including the reasonable out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements expenses of counsel for the Administrative Agent), or arrangements reasonably acceptable to the extent documented prior to or on the date hereof (Administrative Agent shall have been made for the avoidance payment thereof substantially contemporaneously with the consummation of doubtthis Agreement. Without limiting the generality of the provisions of Section 9.03 of the Existing Credit Agreement, a summary statement for purposes of such fees, charges and disbursements shall be sufficient documentation for determining compliance with the obligations set forth conditions specified in this Section 5(j); provided 3, each of the Lenders, the L/C Issuer, and the Swing Line Lender that supporting documentation for has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such summary statement is provided promptly thereafter).Person unless the Administrative Agent shall have received notice from such Lender prior to the proposed First Amendment Effective Date specifying its objection thereto
Appears in 2 contracts
Sources: First Amendment to Credit Agreement (Portillo's Inc.), First Amendment to Credit Agreement (Portillo's Inc.)
Conditions. This Amendment The indemnifying Party’s obligations under this Section 8 (Indemnification for Third Party Claims) shall become effective be conditioned upon and subject to the satisfaction of indemnified parties (i.e., the following conditions precedent no later than February 9Provider Indemnitees or the University Indemnitees, 2017 (as the “Fifth Amendment Effective Date”):
case may be): (a) This Amendment notifying the indemnifying Party promptly in writing of any Claim of which an indemnified party becomes aware, provided, that the failure to provide such notice shall have been duly executed and delivered by each Loan Party, not relieve the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan indemnifying Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where from its ownership, lease or operation of properties or the conduct of its business requires such qualificationobligations hereunder, except to the extent of any material prejudice to the indemnifying Party as a direct result of such failure; (b) offering the indemnifying Party sole authority to control fully, at the indemnifying Party’s expense with counsel of its choice, the defense and settlement of any Claim; provided, that failure any Claim of a regulatory nature or involving any Educational Agency shall be under the mutual control of University and Provider and subject to do so could not reasonably Section 15 (Duty to Cooperate) of this Agreement, it being understood that the primary communications with the Educational Agency shall be expected through University (although Provider may be present at or participate in such discussions in its discretion and University will provide reasonable prior written notice to have a Material Adverse Effect.
Provider of such discussions); (c) The Administrative Agent having the right, at the indemnified parties’ cost and expense, to participate in the defense of such Claim using legal counsel of its or their own choosing, provided, that such participation shall have received a certificate signed by a Responsible Officer not reduce or impact the indemnifying Party’s control of the Borrower certifying defense and settlement as provided herein; and (id) that furnishing all reasonable cooperation and assistance requested by the conditions specified indemnifying Party in accordance with Section 15 (Duty to Cooperate) below. Notwithstanding anything to the contrary contained in this Section 5 have been satisfied8 (Indemnification for Third Party Claims), and if, within fifteen (ii15) that there has been no event or circumstance since December 29days following receipt by the indemnifying Party of notice of a Claim pursuant to subpart (a) of the preceding sentence, 2015 that has had or could be reasonably expected the indemnifying Party fails to haveprovide written notice to the indemnified parties of the indemnifying Party’s intention to assume the defense of such Claim, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent then each indemnified party shall have received a certificate attesting the right to assume the Solvency sole control of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer defense of the Borrower.
(e) The Administrative Agent shall have received an executed copy such Claim by counsel of an agreement by a Sponsor Investorits choice, in form which event if the Claim is in fact a Claim for which the indemnifying Party was obligated to defend, indemnify and substance reasonably acceptable to hold harmless the Administrative Agentindemnified parties, to purchase Qualified Securities the indemnifying Party shall indemnify any such indemnified party for all reasonable attorneys’ fees and costs incurred by such indemnified party in the Borrower for not less than $18,500,000 in gross cash proceeds connection with such defense and the Borrower shall receive the proceeds such reimbursement of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which attorneys’ fees shall be in form and substance acceptable addition to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed indemnification for all reasonable and documented fees and out-of-pocket charges and other expenses incurred amounts sought hereunder in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for such Claim. For the avoidance of doubt, neither Party may settle a summary statement Claim without the prior written consent of the other Party, such feesconsent not to be unreasonably withheld, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)delayed or conditioned.
Appears in 2 contracts
Sources: Master Services Agreement (Grand Canyon Education, Inc.), Master Services Agreement (Grand Canyon Education, Inc.)
Conditions. This Amendment shall become effective upon 3.1 The sale and purchase of the Sale Shares pursuant to this Agreement is in all respects conditional on the satisfaction or waiver of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):Conditions:
(a) This Amendment shall have been the passing of a duly executed and delivered by each Loan Party, convened resolution of the Administrative Agent and board of directors of NewLead to approve the Lenders.arrangements described in this Agreement in the agreed form subject to the fiduciary duties from time to time of their directors;
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer confirmation in writing from each of the Mortgagee Banks, (in forms acceptable to the Purchaser and NewLead in all respects), that each Loan Party attaching Mortgagee Bank: (i) resolutions or other action authorizing approves and consents to the actions under arrangements described in this Amendment Agreement; and the Credit Agreement as amended hereby, (ii) incumbency certificatesagrees to a moratorium or grace period in respect of any rights the Mortgagee may have against the Companies and/or the Vessels (on such terms as may be acceptable to the Purchaser);
(c) the continuing public listing of common stock in NewLead on any national security exchange or market, trading or quotation facility up to an including the First Completion Date;
(iiid) certified copies the issuance of a satisfactory legal opinion or due diligence report by the Purchaser's Solicitors in favour of the Organization Documents Purchaser (or NewLead as the case may be) in such form as may be acceptable to the Purchaser;
(e) the issuance of a satisfactory financial report (including, without limitation, an analysis of the Assets, historical audited accounts for the financial years ending 31 December 2011, 31 December 2012 and 31 December 2013 and other financial statements of the Companies and the Vendors' Group) by the Vendor's Accountants in favour of the Purchaser (or NewLead as the case may be) in such Loan Partyform as may be acceptable to the Purchaser;
(f) the issuance of a letter to the Purchaser and NewLead (in such form as may be acceptable to the Purchaser) from each of the Vendors, in each case, certified as the Companies and the directors/officers of the Companies confirming (amongst other things) that all documentation and information supplied to the Purchaser (or the Purchaser's Solicitors on behalf of the Purchaser) is true, accurate and complete in all respects, does not contain any misstatement of fact or omit any material fact, is not misleading and has not been amended, varied or supplemented in effect on any way on, before or after the date hereof (that such documentation or a certification that there shall have been no changes to information was supplied by the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.Purchaser; and
(g) The Administrative Agent shall have received an agreeement, in form all Parties (other than NewLead) having passed director and substance reasonably satisfactory to the Administrative Agent, acknowledging shareholder resolutions approving this Agreement and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and all matters required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this AmendmentAgreement.
3.2 The Parties must use all reasonable endeavours to procure that the Conditions are satisfied as soon as practicable and in any event no later than 00:00:
(a) on 31 October 2014; or
(b) where a later date has been agreed in writing between the Parties, includingon that date.
3.3 A Condition may only be waived by all Parties in writing.
3.4 If the Conditions have not been satisfied or waived by 00:00 on 31 October 2014 this Agreement will terminate and cease to have effect immediately after that time on that date except for Clauses 19, without limitation20, the reasonable fees 21,24, 25, 26 and disbursements of counsel for the Administrative Agent, to the extent documented prior to any rights or on the date hereof (for liabilities that may have accrued under this Agreement.
3.5 For the avoidance of doubt, in the event of termination of the Agreement pursuant to Clause 3.4 above, the Vendors shall not be entitled to make any claim whatsoever against either the Purchaser or NewLead for any compensation, indemnity, losses, damages, expenses or costs whatsoever whether directly or indirectly incurred or whether present, future or contingent as a summary statement of consequence such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in termination or entry into this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Agreement.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement (NewLead Holdings Ltd.), Share Sale and Purchase Agreement (NewLead Holdings Ltd.)
Conditions. This Amendment Agreement shall become be effective upon on the satisfaction first date (the “Incremental Closing Date”) on which each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):set forth in this Section 5 have been satisfied:
(a) This Amendment Agreement shall have been duly executed and delivered by each Loan Partythe Incremental Lender, the Administrative Agent Borrowers, the Guarantors and the LendersAdministrative Agent.
(b) The Administrative Agent shall have received certificates executed by received, for distribution to the Incremental Lender, a Responsible Officer certificate of the secretary or assistant secretary (or other officer reasonably acceptable to the Administrative Agent) of each Loan Party attaching Borrower dated the Incremental Closing Date, certifying (A) that (i) resolutions attached thereto is a true and complete copy of each Organizational Document (or other action authorizing its equivalent) of such Borrower certified (to the actions under this Amendment and extent applicable) as of a recent date by the Credit Agreement as amended hereby, Secretary of State of the state of its organization or (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Organizational Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as Borrower delivered to the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedon the Closing Date, and (B) that each Loan Party attached thereto is validly existinga true and complete copy of resolutions duly adopted by the Board of Managers of such Borrower establishing that all necessary organizational action on the part of such Borrower has been taken, authorizing the execution, delivery and performance of this Agreement contemplated to be entered into by such Borrower and that such resolutions and other actions have not been modified, rescinded, supplemented, or amended and are in good standing full force and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effecteffect.
(c) The Administrative Agent shall have received received, for distribution to the Incremental Lender, a certificate signed by as to the good standing of each Borrower as of a Responsible Officer recent date, from the Secretary of State of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectState of Delaware.
(d) The Administrative Agent shall have received received, for distribution to the Incremental Lender, a certificate attesting from an Authorized Officer of the Borrower Representative reasonably satisfactory to it certifying and demonstrating (a) as to the Solvency Borrowers’ Certifications in Section 7 hereof, and (b) that all of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer requirements set forth in Section 2.25 of the BorrowerCredit Agreement have been satisfied with respect to the Incremental Facility, such certificate to be accompanied by calculations shown in reasonable detail to that effect.
(e) The Administrative Agent and the Incremental Lender shall have received an executed copy received, on behalf of an agreement by themselves, the other Agents, the Lenders and the Issuing Bank, a Sponsor Investorfavorable written opinion of ▇▇▇▇▇ Day, in form and substance reasonably acceptable special counsel for the Credit Parties, (A) dated the Incremental Closing Date, (B) addressed to the Administrative AgentAgents, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds Incremental Lender, the Issuing Bank and the Borrower Lenders and (C) covering such matters relating to this Agreement and the Credit Documents as the Administrative Agent shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Datereasonably request.
(f) The Administrative Agent shall have received payment of (i) all fees due to it and the list Incremental Lender, as separately agreed, (ii) reimbursement or payment of Restaurants all reasonable and documented out-of-pocket expenses of the Incremental Lender incurred in connection with the entry into of this Agreement and (iii) all amounts due and payable under Section 10.2 of the Credit Agreement, including, reimbursement or payment of all out-of-pocket expenses that are specifically required to be closed or refranchised referred to paid on the Incremental Closing Date, in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable each case, to the Administrative Agentextent invoiced at least two (2) Business Days prior to the Incremental Closing Date.
(g) Solely to the extent specifically requested by the Incremental Lender at least three (3) Business Days prior to the Incremental Closing Date, the Incremental Lender shall have received at least one (1) Business Day prior to the Incremental Closing Date all documentation and other information required under Anti-Terrorism Laws and applicable “know-your-customer” and anti-money laundering Laws, including a Beneficial Ownership Certification.
(h) The Administrative Agent shall have received an agreeementreceived, in form and substance reasonably satisfactory for distribution to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubtIncremental Lender, a summary statement of such feesSolvency Certificate duly executed and delivered by Parent, charges and disbursements shall be sufficient documentation for substantially in the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).form attached hereto as Exhibit A.
Appears in 2 contracts
Sources: Joinder Agreement, Joinder Agreement (NRC Group Holdings Corp.)
Conditions. This The effectiveness of this Amendment shall become effective upon is subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (on the “Fifth Third Amendment Effective Date”)::
a. the Administrative Agent (aor its counsel) This shall have received from each of the Loan Parties party thereto a counterpart (or written evidence satisfactory to the Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart) of (i) this Amendment signed by Holdings, the Borrowers, and each other Loan Party, (ii) deeds of acknowledgement, dated as of the Third Amendment Effective Date, for each of (x) the Cyprus Share Pledge and (y) the Cyprus Debenture, each signed by each Loan Party party thereto, (iii) an amendment and reaffirmation agreement, dated as of the Third Amendment Effective Date, referring to each of (w) the Hungarian Quota Pledge, (x) the Hungarian Account Pledge, (y) the Hungarian Rights Pledge and (z) the Hungarian Asset Pledge, signed by each Loan Party party thereto, (iv) each Promissory Note signed by the Borrowers (to the extent requested at least three Business Days prior to the Third Amendment Effective Date), (v) the Third Amendment Fee Letter (as defined below) signed by OPC, and (vi) each other Loan Document to be executed on the Third Amendment Effective Date signed by the Loan Parties party thereto;
b. this Amendment shall have been duly executed and delivered by (i) the Administrative Agent and (ii) each Loan PartyLender, including each Existing Lender and each New Lender;
c. the Administrative Agent shall have received, on behalf of itself and the Lenders on the Third Amendment Effective Date, customary written legal opinions (A) dated the Third Amendment Effective Date, (B) addressed to the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) Lenders and (ivC) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to this Amendment and all documents and instruments delivered in connection herewith as the Administrative Agent shall reasonably request, from each of:
(i) Ropes & ▇▇▇▇ LLP, special counsel to Holdings, the Borrowers and the other Loan Parties, with respect to U.S. law matters;
(ii) Andrékó Kinstellar Ügyvédi Iroda, special Hungarian counsel to the Administrative Agent, acknowledging with respect to Hungarian law matters; and
(iii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Co LLC, special Cyprus counsel to the Administrative Agent, with respect to Cyprus law matters.
d. the Administrative Agent shall have received the results of recent UCC (or similar), tax, judgment and agreeing that certain intellectual property Lien searches with respect to each of the text shown as unmarked text Loan Parties in Exhibit A each applicable jurisdiction;
e. the Borrower Representative shall have delivered to the Fourth Administrative Agent a Borrowing Request pursuant to Section 2.03 of the Credit Agreement in connection with the funding of the Term Loans on the Third Amendment is notEffective Date; provided that, and has never been, effectively part notwithstanding the deadline for delivery of such Borrowing Request set forth in clause (a) of Section 2.03 of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A Borrowing Request may be delivered no later than 1:00 p.m., two (2) Business Days prior to the Fourth AmendmentThird Amendment Effective Date;
f. Prior to or substantially concurrently with the funding of the Term Loans hereunder on the Third Amendment Effective Date, (i) the entire outstanding principal amount of the Subordinated Notes (as defined in the Existing Credit Agreement) and all interest, fees (including any prepayment fees), expenses and other obligations under the Subordinated Note Purchase Agreement (as defined in the Existing Credit Agreement), and (ii) the entire principal amount of the Designated PIK Notes and all interest, fees (including any prepayment fees), expenses and other obligations with respect thereto, in each case of (i) and (ii) above, will be indefeasibly paid, repaid, redeemed, defeased, discharged or terminated and any security interests, if any, and guaranties related thereto will be terminated and released (collectively, the “Third Amendment Debt Repayment”) and the Administrative Agent shall have received payoff letters reasonably satisfactory to it with respect to each such payment and termination.
(h) The g. the representations and warranties set forth in Section 4 hereof shall be true and correct.
correct in all material respects (ior, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects) All fees on and expenses due and owing as of such date, provided that to the Administrative Agent extent that a representation and the Lenders warranty specifically refers to a given date or period, it shall be true and required to be paid on correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated similar term or qualification, in all respects) as of February 8such date or period, 2017 by as the case may be;
h. at the time of and among immediately after giving effect to the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing effectiveness of this Amendment)., no Default or Event of Default shall have occurred;
(j) The i. the Administrative Agent shall have been reimbursed for all reasonable received board (or equivalent governing body) resolutions and documented fees officer’s certificates substantially consistent with those delivered on the Closing Date;
j. the Administrative Agent shall have received a certificate as to solvency, in substantially the form of Exhibit I to the Credit Agreement (but referring to this Amendment and out-of-pocket charges and other expenses incurred in connection with the transaction contemplated thereby, rather than the Transactions) from a Financial Officer of Holdings certifying as to the matters set forth therein as of the Third Amendment Effective Date, after giving effect to this Amendment, including, without limitation, including the reasonable fees borrowing of the Term Loans and disbursements the use of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements proceeds thereof;
k. there shall be sufficient documentation for no order, injunction or decree of any Governmental Authority restraining or prohibiting this Amendment or any of the obligations set forth transactions contemplated hereby;
l. there shall not exist any material action, suit, investigation, litigation or proceeding pending or overtly threatened in any court or before any arbitrator or Governmental Authority that challenges any of the Loan Documents, including this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).Amendment, or any of the transactions contemplated hereby;
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Conditions. This Amendment shall become effective upon the satisfaction Completion is conditional on each of the following conditions precedent Conditions being satisfied (or waived in accordance with Clause 3.3 (Waiver of Conditions)) on or before the Long Stop Date:
3.1.1 there has been no later material breach of any of the Warranties as given on the date of this Agreement and as at Completion as if made on that date;
3.1.2 there has been no material breach by the Group, the Founder or the Founder Entity of any provision contained in this Agreement (including without limitation Schedule 5 (Action pending Completion);
3.1.3 there has been no Material Adverse Change to the Group, the Founder and/or the Founder Entity since the date of this Agreement;
3.1.4 the due execution of the Transaction Documents that are required to be executed by each of the relevant parties thereto (other than February 9the Investors);
3.1.5 the passing of written resolutions of the Company (i) approving the issue of the Subscription Shares upon Completion; (ii) adopting the Articles of Association containing the rights, 2017 powers and preferences of the Shares; and (iii) Shareholders other than Investors waiving their respective pre-emption right in connection with the “Fifth Amendment Effective Date”):issuance of Series C Shares;
3.1.6 the Company delivering to the Investors an opinion as to the laws of the Cayman Islands dated as of the Completion Date addressed to the Investors in substantially the form set out in Exhibit 4 (a) This Amendment shall Form of Cayman Legal Opinion);
3.1.7 the Company delivering to the Investors an opinion as to the laws of the PRC dated as of the Completion Date addressed to the Investors in substantially the form set out in Exhibit 5 (Form of PRC Legal Opinion);
3.1.8 the due execution by each of the Key Managers, on the one hand, and the relevant Group Company, on the other hand, of an employment contract including provisions on non-competition, confidentiality and intellectual property in a form satisfactory to the Lead Investor; and
3.1.9 The Structured Contracts have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies equity interests of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall Targets have been no changes pledged to the Organization Documents of WFOE and such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 pledge have been satisfiedduly registered with AMR, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included Lead Investor at least part of such text as unmarked text in Exhibit A to the Fourth Amendmentits sole discretion.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 2 contracts
Sources: Series C Subscription Agreement (Waterdrop Inc.), Series C Subscription Agreement (Waterdrop Inc.)
Conditions. This Amendment shall become effective upon the The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a1) This Amendment shall have been duly that Agent has received this Agreement executed and delivered by each Loan PartyAgent, the Administrative Agent Lenders, Borrowers, and the Lenders.GFN Manufacturing;
(b2) The Administrative that Agent shall have has received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes an amendment to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementIntercompany Subordination Agreement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging executed by each applicable Person;
(3) that Agent has received a fee letter, in form and agreeing substance reasonably satisfactory to Agent, executed by each applicable Person;
(4) that certain Agent has received a letter, in form and substance reasonably satisfactory to Agent and executed by each applicable Person, from ▇▇▇▇▇ Fargo, in its capacity as the lender to Southern Frac under Southern Frac’s credit facility governed by a Credit and Security Agreement dated as of October 1, 2012, and other related loan documentation, respecting the amount necessary to repay in full all of the text shown as unmarked text obligations of Southern Frac and GFN Manufacturing owing under that credit facility and obtain a release of all of the Liens existing in Exhibit A favor of that lender in and to the Fourth Amendment is notassets of Southern Frac, together with termination statements and other documentation evidencing the termination by that lender of its Liens in and to the properties and assets of Southern Frac and of GFN Manufacturing;
(5) that Agent has never been, effectively part received evidence satisfactory to Agent that Borrowers will have Excess Availability plus Qualified Cash of at least $23,200,000 immediately after giving effect to the transactions contemplated by this Agreement or to be effected under the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid amended by this Agreement, on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing effective date of this Amendment).
Agreement (j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, (A) the reasonable repayment in full of the existing credit facility of Southern Frac referred to in clause (4) of this Section 6, and (B) the payment of all fees and disbursements expenses required to be paid by Borrowers on or before the effective date of counsel for this Agreement under this Agreement, the Administrative AgentCredit Agreement, or the other Loan Documents);
(6) that Agent has received copies (executed or certified, as appropriate) of all other legal documents or minutes of proceedings taken in connection with the execution and delivery of this Agreement to the extent documented prior Agent or its counsel reasonably requests;
(7) that Borrowers have paid all fees and expenses required to or be paid by Borrowers on the date hereof of this Agreement under this Agreement, the Credit Agreement, or the other Loan Documents; and
(for 8) that all legal matters incident to the avoidance execution and delivery of doubt, a summary statement of such fees, charges this Agreement are satisfactory to Agent and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)its counsel.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (General Finance CORP)
Conditions. This Amendment Agreement shall become effective upon as of the satisfaction first date (the “2017 Refinancing Effective Date”) when each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):shall have been satisfied:
(a) This Amendment the Administrative Agent shall have been duly executed and delivered by received from each Loan Party, the Replacement Revolving Facility Lenders, the Refinancing Term Lender (which, immediately following the effectiveness hereof, constitute the Required Lenders) and the Administrative Agent and (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Lenders.Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(b) The the representations and warranties set forth in Section 5 above shall be true and correct as of the 2017 Refinancing Effective Date;
(c) the Administrative Agent shall have received certificates a certificate, dated the 2017 Refinancing Effective Date and executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and Borrowers, confirming the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies accuracy of the Organization Documents of such representations and warranties set forth in Section 5 above;
(d) a Borrowing Request relating to the Refinancing Term Loans and a prepayment notice relating to the Term B Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there Repayment Amounts shall have been no changes to delivered in accordance with Section 2.10(d) of the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.Credit Agreement;
(ce) The the Administrative Agent shall have received received, on behalf of itself, the Replacement Revolving Facility Lenders, and the Refinancing Term Lender, a certificate signed by a Responsible Officer favorable written opinion from each of the Borrower certifying (i) that ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the conditions specified in this Section 5 have been satisfied, Loan Parties and (ii) that there has been no event or circumstance since December 29▇▇▇▇▇▇, 2015 that has had or could be reasonably expected to have▇▇▇▇▇ & Bockius, either individually or LLP, New York counsel for the Loan Parties, in the aggregate, a Material Adverse Effect.
each case (dA) The Administrative Agent shall have received a certificate attesting to the Solvency dated as of the Loan Parties on a consolidated basis before and after giving effect to this Amendment2017 Refinancing Effective Date, from the chief financial officer of the Borrower.
(eB) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable addressed to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds Replacement Revolving Facility Lenders and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
Refinancing Term Lender and (fC) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative AgentAgent and covering such other matters relating to this Agreement as the Administrative Agent shall reasonably request;
(f) the Administrative Agent shall have received board resolutions and other customary closing certificates and documentation consistent with those delivered on the Third Amendment Effective Date and such additional customary documents and filings as the Administrative Agent may reasonably require to assure that the Replacement Revolving Facility and the Refinancing Term Loans contemplated hereby are secured by the Collateral ratably with the existing Revolving Facility and Term B Loans;
(g) the Administrative Agent shall have received, acknowledging and agreeing that certain for the account of the text shown Refinancing Term Lender, an amount equal to 0.10% of the aggregate principal amount of the Refinancing Term Loans held by the Refinancing Term Lender as unmarked text in Exhibit A of the 2017 Refinancing Effective Date, with such payment to be earned by, and payable to the Fourth Amendment is not, and has never been, effectively part Refinancing Term Lender on the 2017 Refinancing Effective Date (which may be offset against the proceeds of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.Term B Loan Refinancing);
(he) The representations all principal, interest and warranties set forth fees outstanding on the 2017 Refinancing Effective Date shall have been paid in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing full to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to account of the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).existing Revolving Facility Lenders;
Appears in 2 contracts
Sources: Incremental Assumption Agreement, Incremental Assumption Agreement (Rexnord Corp)
Conditions. This Amendment The consummation of the transactions set forth in Sections 3 and 4 of this Agreement shall become effective upon be subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Party, party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent and the Lenders(which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each Loan Party attaching of (i) resolutions or other action authorizing ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel of the actions under this Amendment Borrower, and the Credit Agreement as amended hereby, (ii) incumbency certificates▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, (iii) certified copies counsel for the Borrower, substantially in the form of the Organization Documents of Exhibits B-1 and B-2, respectively, and covering such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes other matters relating to the Organization Documents of such Borrower, this Agreement, the Restated Term Loan Party since August 2, 2016) and (iv) such other documents and certifications Credit Agreement or the transactions contemplated hereby or thereby as the Administrative Agent may shall reasonably require request. The Borrower hereby requests such counsel to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires deliver such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectopinions.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower certifying (i) that Borrower, the conditions specified authorization of this Agreement and the Restated Term Loan Credit Agreement and any other legal matters relating to the Borrower, this Agreement or the Restated Term Loan Credit Agreement, all in this Section 5 have been satisfied, form and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected substance satisfactory to have, either individually or in the aggregate, a Material Adverse EffectAdministrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate attesting to certificate, dated the Solvency of Restatement Effective Date and signed by the Loan Parties on President, a consolidated basis before and after giving effect to this Amendment, from the chief financial officer Vice President or a Financial Officer of the Borrower, confirming the representations and warranties set forth in paragraphs (a) and (b) of Section 5 of this Agreement.
(e) The Administrative Agent shall have received an executed copy of an agreement all amounts required to be paid by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Datepursuant to Section 3 hereof.
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the list Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of Restaurants all out-of-pocket expenses required to be closed reimbursed or refranchised referred to in paid by the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative AgentBorrower hereunder.
(g) The Administrative Agent shall have received an agreeementbe satisfied that the Amendment and Restatement Agreement (Revolving Credit Agreement) dated as of the date hereof, in form and substance reasonably satisfactory with respect to the Administrative AgentAmended and Restated Revolving Credit Agreement dated as of October 6, acknowledging 2004, as previously amended and agreeing that certain restated as of November 5, 2004 and March 22, 2006, among the text shown Borrower, the lenders party there and JPMorgan Chase Bank, N.A., as unmarked text administrative agent, shall become effective in Exhibit A to accordance with its terms concurrently with the Fourth effectiveness of this Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth AmendmentRestatement.
(h) The representations and warranties set forth in Section 4 hereof Administrative Agent shall be true satisfied that the 364-Day Revolving Credit Agreement dated as of the date hereof, among the Borrower, the lenders party there and correctJPMorgan Chase Bank, N.A., as administrative agent, shall become effective in accordance with its terms concurrently with the effectiveness of this Amendment and Restatement.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for received all reasonable and documented fees and out-of-pocket charges documentation and other expenses incurred in connection with this Amendmentinformation reasonably requested by it to satisfy the requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding the Patriot Act. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, without limitationand such notice shall be conclusive and binding. Notwithstanding the foregoing, the reasonable fees and disbursements consummation of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations transactions set forth in Sections 3 and 4 of this Section 5(j); provided that supporting documentation for Agreement shall not become effective unless each of the foregoing conditions is satisfied at or prior to 3:00 p.m., New York City time, on August 3, 2007 (and, in the event such summary statement is provided promptly thereafterconditions are not so satisfied or waived, this Agreement shall terminate at such time).
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Term Loans) (Limited Brands Inc), Amendment and Restatement Agreement (Term Loans) (Limited Brands Inc)
Conditions. This The effectiveness of the amendments set forth in this Amendment shall become effective upon be subject to the satisfaction of each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative 4.1 Agent shall have received an original of this Amendment, duly authorized, executed copy and delivered by Borrowers and Guarantors;
4.2 Agent shall have received all consents of an agreement by a Sponsor InvestorLenders required for the consents and amendments provided for herein;
4.3 Agent shall have received evidence, in form and substance reasonably acceptable satisfactory to Agent, that Borrowers and Guarantors have obtained all necessary consents and approvals to the Administrative execution, delivery and performance of this Amendment, which are and shall remain in full force and effect;
4.4 Agent shall have received, in form and substance satisfactory to Agent, to purchase Qualified Securities evidence that all requisite corporate or limited liability company action and proceedings in the Borrower for not less than $18,500,000 in gross cash proceeds connection with this Amendment have been taken and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative approved, and Agent shall have received the list all information and copies of Restaurants all documents, including records of requisite corporate or limited liability company action and proceedings which Agent may have reasonably requested in connection therewith, such documents where requested by Agent or its counsel to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.certified by appropriate corporate officers;
(g) The Administrative 4.5 Agent shall have received an agreeement(i) a copy of the By-Laws of Madewell, (ii) a certificate from the Secretary or Assistant Secretary of Madewell dated on or about the date hereof certifying that each of the foregoing documents remains in full force and effect and has not been modified or amended, except as described therein, and (iii) good standing certificates (or its equivalent) from the Secretary of State (or comparable official) from each jurisdiction where the nature and extent of the business transacted by Madewell or ownership of assets and properties makes such qualification necessary;
4.6 Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging from Madewell, Secretary’s Certificates of Directors’ Resolutions, Corporate By-laws, Incumbency and agreeing that certain Shareholder’s Consent evidencing the adoption and subsistence of corporate resolutions approving the text shown as unmarked text in Exhibit A to the Fourth execution, delivery and performance by Madewell of this Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders agreements, documents and required instruments to be paid on or before the Fifth Amendment Effective Date delivered pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).;
(j) The Administrative 4.7 Agent shall have been reimbursed for all reasonable received, in form and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative substance satisfactory to Agent, evidence that Agent will have a valid perfected first priority security interest in all of the Collateral of Madewell upon the filing of a UCC financing statement naming Agent, as secured party, and Madewell, as debtor;
4.8 Agent shall have received, in form and substance reasonably satisfactory to Agent, each of the extent documented prior to Madewell Supplemental Agreements, as duly authorized, executed and delivered by the parties thereto; and
4.9 No Default or on the date hereof (for the avoidance Event of doubt, a summary statement of such fees, charges Default shall exist or have occurred and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)continuing.
Appears in 2 contracts
Sources: Loan and Security Agreement (J Crew Group Inc), Loan and Security Agreement (J Crew Group Inc)
Conditions. This Amendment The obligations of the Lenders to make Loans hereunder shall not become effective upon until the satisfaction date on which each of the following conditions precedent no later than February 9, 2017 is satisfied (the “Fifth Amendment Effective Date”or waived in accordance with Section 7.02):
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Party, party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent and the Lenders(which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching favorable written opinion (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes addressed to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require and the Lenders and dated the Effective Date) of in-house counsel for the Borrower, substantially in the form of Exhibit B. The Borrower hereby requests such counsel to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires deliver such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectopinion.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of such documents and certificates as the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting or its counsel may reasonably request relating to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendmentorganization, from the chief financial officer existence and, if applicable, good standing of the Borrower.
(e) The Administrative Agent shall have received an executed copy , the authorization of an agreement by a Sponsor Investor, in form the Transactions and substance reasonably acceptable any other legal matters relating to the Administrative AgentBorrower, to purchase Qualified Securities in this Agreement or the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementTransactions, all in form and substance reasonably satisfactory to the Administrative Agent, acknowledging Agent and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendmentits counsel.
(hd) The representations and warranties of the Borrower set forth in Section 4 hereof Article III of this Agreement shall be true and correctcorrect on and as of the date of such Borrowing.
(ie) All fees At the time of and expenses due and owing immediately after giving effect to the Administrative Agent and the Lenders and required to be paid on such Borrowing no Default or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as Event of February 8, 2017 by and among the Administrative Agent and the Borrower, Default shall have been paid (or shall occurred and be paid concurrently with the closing of this Amendment)continuing.
(jf) The Borrower shall have delivered the Firm Public Offering Shares to the underwriters of the Borrower’s initial public offering within four (4) Business Days after the Master Agreement Closing Date. The Administrative Agent shall have been reimbursed for all reasonable notify the Borrower and documented fees the Lenders of the Effective Date, and out-of-pocket charges such notices shall be conclusive and other expenses incurred in connection with this Amendment, including, without limitationbinding. Notwithstanding the foregoing, the reasonable fees and disbursements obligations of counsel for the Administrative Agent, Lenders to make Loans hereunder shall not become effective unless each of the extent documented foregoing conditions is satisfied (or waived pursuant to Section 7.02) at or prior to 3:00 p.m., New York City time, on June 11, 2004 (and, in the event such conditions are not so satisfied or on waived, the date hereof (for the avoidance of doubt, a summary statement of Commitments shall terminate at such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereaftertime).
Appears in 2 contracts
Sources: Bridge Credit Agreement (Genworth Financial Inc), Bridge Credit Agreement (Genworth Financial Inc)
Conditions. This Amendment shall become effective 4.1 The obligations of the Parties, respectively, as contemplated by this Agreement, are in all respects conditional upon the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):matters:
(a) This Amendment Each Party being given full access to all the relevant records relating to the other Parties. The Parties agree that they, and their representatives shall have been duly executed and delivered by each Loan not disclose any information so furnished without the consent of the furnishing Party, the Administrative Agent and the Lenders.;
(b) The Administrative Agent shall have received certificates executed There not being any objection put forward by a Responsible Officer any relevant authority in connection with the finality and purpose of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment Agreement and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.transactions contemplated herein;
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer completion of the Borrower certifying (i) that agreements contemplated hereby, including the conditions specified in this Section 5 have been satisfiedamendment of Goltech's regulations, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected other organizational documents to have, either individually or in reflect the aggregate, a Material Adverse Effect.matters stipulated hereinabove;
(d) The Administrative Agent No governmental agency or regulatory body or any other person or organization having instituted any action, suit or investigation which restrains, prohibits or otherwise challenges the completion and performance of the transactions contemplated in this Agreement; or threatened to take any action as a result of or in anticipation of the transactions contemplated in this agreement; or proposed or enacted any statute or regulation which would prohibit, materially restrict or materially delay implementation of the transactions contemplated by this Agreement.
4.2 MOT and its representatives shall have received the right to conduct a certificate attesting to the Solvency full due diligence review of the Loan Parties on a consolidated basis before activities, accounts, contracts, capital, payables, receivables, oil sales, production, exploration, assets, liabilities, and after giving effect to this Amendment, from the chief financial officer other facets of the Borrower.
(e) The Administrative Agent businesses of Goltech, Goloil and Teton for a period until 24 July 2000. Without limiting the foregoing, Teton shall have received an executed copy of an agreement by provide to MOT a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the detailed list of Restaurants to be closed its liabilities and obligations. In the event that such due diligence reveals events, circumstances, facts or refranchised referred to in other matters which breach the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth herein, reveal any material liabilities of Goloil, Goltech or Teton, or matters that materially adversely affect the rights of MOT hereunder, or under any agreement executed and delivered in Section 4 hereof connection herewith, then MOT may terminate this Agreement, and thereupon the provisions of Clause 2.10 shall be true apply as if MOT had breached this Agreement. Thereupon, each Party shall take such actions, deliver such instruments and correct.
(i) All fees and expenses due and owing otherwise undertake such operations as necessary to give effect to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)foregoing.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 2 contracts
Sources: Master Agreement (Teton Petroleum Co), Master Agreement (Teton Petroleum Co)
Conditions. This The effectiveness of this Amendment shall become effective upon and the obligations of each 2016 Incremental Term Loan Lender to fund its portion of the 2016 Incremental Term Loan is subject to the satisfaction of the following conditions precedent no later than February 9conditions:
a. the Administrative Agent (or its counsel) shall have received from each of the Loan Parties party thereto a counterpart (or written evidence satisfactory to the Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart) of (i) this Amendment signed by Holdings, 2017 the Borrowers, and each other Loan Party, (ii) deeds of acknowledgement, dated as of the “Fifth First Amendment Effective Date”):
, for each of (ax) This Amendment shall have been duly executed the Cyprus Share Pledge and delivered (y) the Cyprus Debenture, each signed by each Loan PartyParty party thereto, (iii) an amendment and reaffirmation agreement, dated as of the First Amendment Effective Date, referring to each of (w) the Hungarian Quota Pledge, (x) the Hungarian Account Pledge, (y) the Hungarian Rights Pledge and (z) the Hungarian Asset Pledge, signed by each Loan Party party thereto, (iv) each Promissory Note signed by the Borrowers (to the extent requested at least three Business Days prior to the First Amendment Effective Date), and (v) each other Loan Document to be executed on the First Amendment Effective Date signed by the Loan Parties party thereto;
b. the Administrative Agent shall have received, on behalf of itself and the 2016 Incremental Term Loan Lenders on the First Amendment Effective Date, customary written legal opinions (A) dated the First Amendment Effective Date, (B) addressed to the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each 2016 Incremental Term Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) Lenders and (ivC) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to this Amendment and all documents and instruments delivered in connection herewith as the Administrative Agent shall reasonably request, from each of:
(i) Ropes & ▇▇▇▇ LLP, special counsel to Holdings, the Borrowers and the other Loan Parties, with respect to U.S. law matters;
(ii) Andrékó Kinstellar Ügyvédi Iroda, special Hungarian counsel to the Administrative Agent, acknowledging with respect to Hungarian law matters; and
(iii) Andreas Neocleous & Co, special Cyprus counsel to the Administrative Agent, with respect to Cyprus law matters.
c. the Administrative Agent shall have received the results of recent UCC (or similar), tax and agreeing that certain judgment Lien searches with respect to each of the text shown as unmarked text Loan Parties in Exhibit A each applicable jurisdiction in the United States;
d. the Borrower Representative shall have delivered to the Fourth Administrative Agent a Borrowing Request pursuant to Section 2.03 of the Credit Agreement in connection with the funding of the 2016 Incremental Term Loan on the First Amendment is notEffective Date; provided that, and has never been, effectively part notwithstanding the deadline for delivery of such Borrowing Request set forth in clause (a) of Section 2.03 of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A Borrowing Request may be delivered no later than 1:00 p.m., two (2) Business Days prior to the Fourth Amendment.First Amendment Effective Date;
e. Prior to or substantially concurrently with the funding of the 2016 Incremental Term Loan, the UCB Acquisition shall have been consummated in all material respects in accordance with the terms of the UCB Acquisition Agreement, but without any amendments, waivers or consents by any party thereto that are materially adverse to the interests of the 2016 Incremental Term Loan Lenders or the Lead Arranger in their respective capacities as such without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (hit being understood and agreed that (a) The any decrease in the purchase price shall be deemed to not be materially adverse to the interests of the 2016 Incremental Term Loan Lenders or the Lead Arranger so long as such decrease reduces the 2016 Incremental Term Loan on a dollar-for-dollar basis and (b) any increase in the purchase price shall be deemed to not be materially adverse to the 2016 Incremental Term Loan Lenders or the Lead Arranger so long as such increase is funded with cash on the balance sheet of OPC or amounts permitted to be drawn and applied for such purpose under the Revolving Credit Commitments (as defined in the Existing Credit Agreement));
f. the 2016 Incremental Term Loan shall be an “Incremental Term Loan” as defined in the Existing Credit Agreement, incurred in accordance with Section 2.21 of the Existing Credit Agreement;
g. each of the representations and warranties set forth made by the Seller in Section 4 hereof the UCB Acquisition Agreement as are material to the interests of the 2016 Incremental Term Loan Lenders (but only to the extent that the Buyer or its applicable affiliate have the right to terminate its obligations under the UCB Acquisition Agreement or to decline to consummate the UCB Acquisition as a result of a breach of such representations in the UCB Acquisition Agreement (to such extent, the “UCB Specified Acquisition Agreement Representations”)), and each of the Specified Representations, shall be true and correct.correct in all material respects (except in the case of any UCB Specified Acquisition Agreement Representation or Specified Representation which 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);
h. the consummation of the UCB Acquisition shall not result in (i) All fees and expenses due and owing the assumption by any Loan Party of any Indebtedness other than Indebtedness permitted by Section 6.01 of the Existing Credit Agreement or (ii) the acquisition by any Loan Party of any asset or property subject to any Lien other than Permitted Liens;
i. the Administrative Agent shall have received board (or equivalent governing body) resolutions and officer’s certificates substantially consistent with those delivered on the Lenders Closing Date;
j. the Administrative Agent shall have received a certificate in substantially the form of Annex I to Exhibit B of the 2016 Incremental Term Loan Commitment Letter from a Financial Officer of Holdings certifying as to the matters set forth therein;
k. the Administrative Agent shall have received a certificate dated the First Amendment Effective Date and signed on behalf of the Borrower Representative by a Responsible Officer, certifying on behalf of the Borrowers that each condition set forth in Sections 3(e) through (h) above has been satisfied on such date; and
l. the Borrowers shall have paid (i) all the fees required to be paid on or before the Fifth First Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter Letter, dated as of February 8October 20, 2017 2016 (the “First Amendment Fee Letter”), by and among OPC and CIT (and any other fee letter between OPC and any 2016 Incremental Term Loan Lender) and (ii) all expenses required to be paid on the Administrative Agent and First Amendment Effective Date pursuant to the Borrower2016 Incremental Term Loan Commitment Letter, shall for which invoices have been paid presented at least three (or shall be paid concurrently with the closing of this Amendment).
(j3) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, Business Days prior to the extent documented prior to or on First Amendment Effective Date, which amounts may be offset against the date hereof (for proceeds of the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)2016 Incremental Term Loan.
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Conditions. This Amendment shall become be effective upon as of the satisfaction of Amendment Effective Date, provided the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):are satisfied:
(a) This Administrative Agent’s receipt of the following, each of which shall be originals or facsimile or portable document format (PDF) copies (followed promptly by originals) unless otherwise specified, each properly executed, each dated the Amendment shall have been duly executed Effective Date (or, in the case of certificates of governmental officials, a recent date before the date of the Amendment) and delivered by each Loan Party, the in form and substance satisfactory to Administrative Agent and the Lenders.its legal counsel:
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under executed counterparts of this Amendment and the Credit Agreement as amended herebyall other documents and instruments requested by Administrative Agent, sufficient in number for distribution to each Lender and Borrower;
(ii) incumbency certificates, a corporate certificate with resolutions in the form required by Administrative Agent;
(iii) certified copies of the Organization Documents of such Loan Party, fee letters in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes form acceptable to the Organization Documents of such Loan Party since August 2, 2016) and Administrative Agent;
(iv) such other documents certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Lender may require evidencing the identity, authority and certifications capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Amendment and the Administrative Agent may reasonably require other Loan Documents to evidence that each Loan which such Credit Party is duly organized or formed, a party;
(v) fully executed originals of the Ratification of Security Agreement and that each Loan Party is validly existingRelease and Ratification of Subsidiary Guaranty, in good standing the forms set forth on Schedules “1-A” and qualified to engage in business in “1-B”, respectively, attached hereto, for each jurisdiction where its ownership, lease or operation of properties or party thereto (collectively the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.“Ratifications”);
(cvi) The Administrative Agent shall have received fully executed original of a certificate signed Pledge and Security Agreement and Subsidiary Guaranty by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, New Subsidiary in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall hereafter be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of and included within the “Loan Documents” under the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.; and
(hvii) The representations and warranties set forth in Section 4 hereof shall be true and correct.
a favorable written opinion (i) All fees and expenses due and owing addressed to the Administrative Agent and the Lenders and required to be paid on or before dated the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as Date) of February 8▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 2017 by and among LLP, counsel for the Administrative Agent Borrower and the BorrowerSubsidiaries, shall have been paid (or shall be paid concurrently with substantially in the closing form of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with Annex 1 attached to this Amendment, includingand the Borrower hereby requests such counsel to deliver such opinion;
(b) Administrative Agent’s receipt of such other assurances, without limitationcertificates, documents, and consents as Administrative Agent reasonably may require;
(c) the reasonable Borrower shall have paid all fees required by the fee letters; and
(d) unless waived by Administrative Agent, Borrower shall have paid all fees, expenses and disbursements of any law firm or other external counsel for the Administrative Agent, Agent to the extent documented invoiced prior to or on the date hereof (for the avoidance of doubthereof, a summary statement plus such additional amounts of such fees, charges expenses and disbursements as shall constitute its reasonable estimate thereof incurred or to be sufficient documentation for incurred by it through the obligations set forth in closing proceedings as to this Section 5(j); Amendment (provided that supporting documentation for such summary statement is provided promptly thereafterestimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent).
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Matrix Service Co)
Conditions. This Amendment No. 3 shall become effective upon as of the satisfaction date (the “Amendment No. 3 Effective Date”) when, and only when, each of the following conditions precedent no later than February 9, 2017 shall have been (the “Fifth Amendment Effective Date”):or is or will be substantially concurrently therewith) satisfied:
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed received from each of Borrower and delivered by each Loan Party, the Required Lenders either (i) a counterpart of this Amendment No. 3 signed on behalf of Borrower and the Required Lenders or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile transmission or other electronic communication permitted under the Credit Agreement of a signed signature page of this Amendment No. 3) that each of Borrower and the Lenders.Required Lenders has signed a counterpart of this Amendment No. 3;
(b) The Administrative Agent Borrower shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof paid (or a certification that there shall have been no changes caused to the Organization Documents of such Loan Party since August 2, 2016be paid) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, for the benefit of each Lender who consents to purchase Qualified Securities this Amendment No. 3 on or prior to 5:00 p.m., New York City time, on October 28, 2009, a fee (in immediately available funds) on the Borrower for not less than $18,500,000 Amendment No. 3 Effective Date in gross cash proceeds an amount equal to 20 basis points of each such Lender’s outstanding Loans and unused Revolving Commitments as of the Borrower shall receive Business Day ending immediately prior to the proceeds of such issuance no later than the Fifth Amendment No. 3 Effective Date.;
(fc) The Administrative Agent shall have received Except with respect to the list of Restaurants amendments to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof 1(ii)(c) and Section 1(ix) of this Amendment No. 3, (which amendments shall be true become effective on the date this Amendment No. 3 has been executed by Borrower and correct.
(i) All fees the Required Lenders and expenses due and owing to the Administrative Agent and extent all the Lenders and required to be paid on or before other conditions in this Section 3 have been satisfied) the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, Merger Transactions shall have been consummated; and
(d) Borrower shall have paid (or shall have caused to be paid concurrently with paid), in each case to the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for extent invoiced prior to the Amendment No. 3 Effective Date, all reasonable and documented fees and out-of-pocket charges costs and other expenses incurred of the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Amendment, Amendment (including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges charges, disbursements and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafterout-of-pocket expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect thereto).
Appears in 2 contracts
Sources: Credit Agreement (Cambium Learning Group, Inc.), Note Purchase Agreement (Cambium Learning Group, Inc.)
Conditions. This Amendment shall become effective upon the satisfaction of The foregoing is subject to the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This Amendment Agent shall have been received a counterpart of this Agreement and the Intellectual Property Security Agreements, each duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.;
(b) The Administrative Agent shall have filed an amendment to the Financing Statements in the applicable filing office for each Loan Party amending the collateral definition as set forth in this Agreement;
(c) Agent shall have received certificates executed by budget and cash balance projection prepared in good faith and based upon reasonable assumptions covering the weekly periods commencing with the week ending March 1, 2013 through and including the week ending May 17, 2013, in the form attached hereto as Exhibit B (the “Cash Balance Projection”), updated to reflect actual cash balances through the period ending March 1, 2013;
(d) Borrower shall have delivered a Responsible Officer certificate of each Loan Party an authorized officer of Borrower, providing verification of an incumbency and attaching (i) Borrower’s board resolutions or other action authorizing approving the actions under transactions contemplated by this Amendment Agreement and (ii) Borrower’s organizational documents;
(e) Borrower shall have converted Indebtedness owed to GE Capital Equity Investments, Inc. pursuant to (i) that certain Convertible Promissory Note, dated December 28, 2011, in the Credit Agreement as amended herebyface amount of $330,000, (ii) incumbency that certain Convertible Promissory Note, dated April 2, 2012, in the face amount of $330,000 and (iii) that certain Convertible Promissory Note, dated June 28, 2012, in the face amount of $32,641, each into Series B-1 Preferred Stock pursuant to a note exchange agreement reasonably acceptable to GE Capital Equity Investments, Inc.;
(f) Agent shall have received evidence reasonably satisfactory to Agent that Borrower has received not less than $1,325,000 in unrestricted cash from the sale of the Series B-1 Preferred Stock, which amount includes the $45,000 funded to Borrower by certain investors, as required by the First March 2013 Consent and Amendment) and shall provide such further documents, information, certificates, records and filings as Agent may reasonably request;
(g) the Borrower shall deliver, a full and complete copy of the March 2013 Charter Amendments, certified by the Secretary of State of the State of Delaware promptly after such filings;
(h) Agent shall have received, in immediately available funds, an amount equal to the accrued interest due and payable, pursuant to Section 2.3(b)(i), for the Scheduled Payment Date occurring on March 1, 2013; and
(i) (i) No Default or Event of Default shall have occurred and be continuing, (ii) all representations and warranties in Section 5 of the Loan Agreement shall be true and correct as of the date hereof, (iii) certified copies each condition set forth in this Section 4 of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there this Agreement shall have been no changes to the Organization Documents of such Loan Party since August 2satisfied, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer from an authorized officer of Borrower confirming each of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effectforegoing.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 2 contracts
Sources: Consent and Amendment Agreement (Syndax Pharmaceuticals Inc), Consent and Amendment Agreement (Syndax Pharmaceuticals Inc)
Conditions. This Amendment shall become effective upon The making of the Tranche C Term Loans and the occurrence of the Tranche C Closing Date are subject to the satisfaction of the following conditions precedent no later than February 9conditions:
1. The Administrative Agent shall have received counterparts of this Joinder Agreement that bear the signatures of (i) the Administrative Agent, 2017 (ii) Holdings, (iii) the U.S. Borrower and (iv) each Tranche C Lender.
2. The Administrative Agent shall have received the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent and Deutsche Bank AG NEW YORK BRANCH (“Fifth Amendment Effective DateDBAG”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received such certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment action, incumbency certificates and/or other certificates of Responsible Officers of Holdings and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications U.S. Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by act as a Responsible Officer of in connection with this Joinder Agreement, the Borrower certifying (i) that Reaffirmation Agreement and the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.other Loan Documents;
(db) The Administrative Agent shall have received a certificate attesting an opinion from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementParties, in form and substance reasonably satisfactory to the Administrative AgentAgent and DBAG, acknowledging covering such matters relating to this Joinder Agreement and agreeing that certain the transactions contemplated hereby as the Administrative Agent and DBAG shall reasonably request;
(c) a certificate from the chief financial officer of the text shown U.S. Borrower, dated the Tranche C Closing Date, certifying as unmarked text to (A) the accuracy of the representations and warranties set forth in Exhibit A Section C hereof, (B) the satisfaction of the conditions precedent to the Fourth Amendment is not, making of the New Term Loans constituting Tranche C Term Loans that are set forth in clauses (7) and has never been, effectively part (8) of the first proviso to the fourth sentence in Section 2.22(a) of the Credit AgreementAgreement (which, despite a scrivener’s error which included at least part in the case of clause (7) of such text as unmarked text first proviso, shall demonstrate compliance therewith in Exhibit A reasonable detail) and (C) the accuracy of the conditions set forth in Section D3;
(d) a Borrowing Request, adapted appropriately for the borrowing of the Tranche C Term Loans; and
(e) evidence satisfactory to the Fourth AmendmentAdministrative Agent and DBAG that no more than $200.0 million of the Existing Senior Notes will be outstanding after giving effect to the application of proceeds of the Tranche C Term Loans.
(h) 3. The representations and warranties set forth in Section 4 hereof Article III of the Credit Agreement shall be true and correctcorrect 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 Tranche C Closing Date, with the same effect as if made on and as of the Tranche C Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date). Upon the Tranche C Closing Date and immediately after giving effect to the making of the Tranche C Term Loans, no Event of Default or Default shall have occurred and be continuing.
4. All documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations shall have been provided to any Person that is or will become a Tranche C Lender (i) to the extent such Person is not a Lender under the Credit Agreement prior to giving effect to the Tranche C Closing Date and such Person has requested such documentation and information reasonably in advance of the Tranche C Closing Date).
5. All arrangers and bookmanagers with respect to the Tranche C Term Loans shall have received all fees and expenses other amounts due and owing payable to them at or simultaneously upon the borrowing of the Tranche C Term Loans, including reimbursement or payment of all reasonable documented out-of-pocket expenses (including reasonable fees, disbursements and other charges of counsel).
6. Each Loan Party shall have entered into a written instrument reasonably satisfactory to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date DBAG pursuant to which it confirms that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent it consents to this Joinder Agreement and the Borrower, shall have been paid Tranche C Term Loans and that the Security Documents to which it is party will continue to apply in respect of the Credit Agreement (or shall be paid concurrently with after giving effect to this Joinder Agreement) and the closing Obligations of this Amendmentsuch Loan Party (the “Reaffirmation Agreement”).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Joinder Agreement (Nalco Holding CO)
Conditions. This Amendment The amendments described in Sections 2 and 3 above shall become effective upon the satisfaction date on which each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):shall have been satisfied:
(a) This this Amendment shall have been duly executed and delivered by each Loan Partyparty hereto, the Special Obligor Letter dated as of the date hereof shall have been executed and delivered by each party thereto (the "Special Obligor Letter"), and the Fee Letters (together with this Amendment and the Special Obligor Letter, the "Closing Documents") dated as of the date hereof for each Purchaser Group shall have been executed and delivered by each party thereto;
(b) the Administrative Agent and the Lenders.
(b) The Administrative each Purchaser Agent shall have received certificates executed by a Responsible Officer certified copies of each Loan Party attaching (i) the resolutions or other action of the board of directors of the Seller authorizing the actions under this Amendment execution and delivery of the Closing Documents and the Credit Agreement performance by the Seller of the Agreements (as amended hereby, by this Amendment) and the Fee Letters and (ii) incumbency certificates, (iii) certified copies the certificate of incorporation and bylaws of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.Seller;
(c) The the Administrative Agent and each Purchaser Agent shall have received a certificate signed by a Responsible Officer of the Borrower Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign the Closing Documents;
(d) the Administrative Agent and each Purchaser Agent shall have received certified copies of (i) that the conditions specified in resolutions of the board of directors (or its designated committee) of the Originator and the Servicer authorizing the execution and delivery of the Closing Documents and the performance by the Originator and the Servicer of the Agreements (as amended by this Section 5 have been satisfied, Amendment) and the Fee Letters and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.certificate of incorporation and bylaws of the Originator and the Servicer;
(de) The the Administrative Agent and each Purchaser Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer Secretary or Assistant Secretary of the Borrower.Originator and the Servicer certifying the names and true signatures of the officers of the Originator and the Servicer authorized to sign the Closing Documents;
(ef) The the Administrative Agent and each Purchaser Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be favorable opinions in form and substance acceptable to the Administrative AgentAgent and each Purchaser Agent regarding corporate and enforceability matters.
(g) The the Administrative Agent and each Purchaser Agent shall have received an agreeement, in form evidence of payment by the Seller of all accrued and substance reasonably satisfactory to unpaid fees (including those contemplated by the Administrative Agent, acknowledging Fee Letters) and agreeing that certain expenses (including all invoiced fees and expenses of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.Maye▇ ▇▇▇▇▇ ▇▇▇);
(h) The representations the Administrative Agent and warranties set forth in Section 4 hereof each Purchaser Agent shall be true have received good standing certificates with respect to the Seller issued by the Secretaries of the States of Delaware and correct.California; and
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative each Purchaser Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection received good standing certificates with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, respect to the extent documented prior to or on Originator issued by the date hereof (for Secretaries of the avoidance States of doubt, a summary statement of such fees, charges Delaware and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)California.
Appears in 1 contract
Sources: Omnibus Amendment (Ingram Micro Inc)
Conditions. This The effectiveness of this Amendment shall become effective upon the satisfaction of is subject to the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment shall have been delivery to the Administrative Agent of the following documents, each duly authorized and executed and delivered in form and substance reasonably satisfactory to the Administrative Agent:
(i) this Amendment executed by each Loan PartyCredit Party that is a party hereto, the Administrative Agent, the Collateral Agent and the Lenders.;
(ii) a guaranty by Pure Solutions (the “Subsidiary Guaranty”) whereby Pure Solutions shall guaranty all Obligations of the Borrowers under the Credit Agreement;
(iii) a Joinder to Credit Agreement and Information Certificate whereby Pure Solutions shall become a “Credit Party” under the Credit Agreement;
(iv) a Collateral Assignment of Stock Purchase Agreement by COMSYS IT and acknowledged by the PS Sellers;
(v) a pledge amendment whereby COMSYS IT shall pledge one hundred percent of the capital stock of Pure Solutions to the Collateral Agent, for the benefit of the Lenders, together with all stock certificates of Pure Solutions, assignments separate from certificate, proxies and other documents as the Collateral Agent or the Administrative Agent reasonably shall request, pursuant to which the Collateral Agent shall have received, for the benefit of the Administrative Agent, the Collateral Agent and the Lenders, a first priority security interest in all of the issued and outstanding capital stock of Pure Solutions;
(vi) a security agreement executed by Pure Solutions securing all of its obligations under the Subsidiary Guaranty;
(vii) a certificate of the Secretary of Pure Solutions certifying: (A) the names and true signatures of the officers of Pure Solutions authorized to execute, deliver and perform all obligations hereunder; (B) copies of the resolutions of the board of directors or other governing body of Pure Solutions approving and authorizing the execution, delivery and performance, as applicable, of all other documents, instruments or agreements to be executed or delivered in connection herewith and (C) the Organizational Documents of Pure Solutions which, if applicable, shall be certified by the Secretary of State of California as of a recent date; and
(viii) an opinion of counsel to Pure Solutions addressed to the Administrative Agent, the Collateral Agent and Lenders, and such other documents, certificates, waivers and third party agreements as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(b) The the delivery to Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of each PS Purchase Document and all material agreements, documents and instruments entered into by and between Pure Solutions and Cisco Systems, Inc.;
(c) the Organization Documents delivery to Administrative Agent of a payoff letter from each lender to Pure Solutions in form and substance reasonably satisfactory to the Administrative Agent, together with such UCC-3 termination statements, releases of mortgage Liens and other instruments, documents and/or agreements necessary or appropriate to terminate any Liens in favor of such Loan Party, in each case, certified as true, accurate and complete and in effect lenders securing indebtedness which is to be paid off on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is request, duly organized or formed, executed and that each Loan Party is validly existing, in good standing form and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except substance reasonably satisfactory to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.Agent;
(d) The the delivery to Administrative Agent shall have received of a certificate attesting copy of the fully executed consent and amendment to the Solvency First Lien Debt Documents regarding the substance of this Amendment (which shall include, without limitation, the Loan Parties on a consolidated basis before and after giving effect First Lien Lenders’ consent to the transactions contemplated by Section 3 of this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor), in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities and evidence that all conditions contained in the Borrower for not less than $18,500,000 in gross cash proceeds such consent and the Borrower shall receive the proceeds of such issuance no later amendment (other than the Fifth effectiveness of this Amendment) have been satisfied;
(e) the delivery to the Administrative Agent of a fully-executed original of the Consent, Amendment Effective Date.to and Reaffirmation of Intercreditor and Lien Subordination Agreement executed by the Administrative Agent, the Collateral Agent, the Lenders, the First Lien Agent, the Borrowers and certain other Credit Parties;
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable delivery to the Administrative Agent.Agent of a certified copy of the resolutions of the Board of Directors of each Credit Party that is a party hereto approving the execution, delivery and performance of this Amendment and the transactions contemplated hereby;
(g) The Administrative Agent shall have received an agreeement, in form the truth and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain accuracy of the text shown as unmarked text representations and warranties contained in Exhibit A to the Fourth Amendment is not, and has never been, effectively part Section 6 hereof; and
(h) no Default or Event of Default under the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borroweramended hereby, shall have been paid (or shall occurred and be paid concurrently with the closing of this Amendment)continuing.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Comsys It Partners Inc)
Conditions. This Amendment shall become effective upon The effectiveness of this Agreement and the satisfaction obligations of the Issuing Bank to issue Letters of Credit hereunder are subject to the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Issuing Bank shall have been duly executed and delivered by each Loan received the favorable written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Account Party, substantially to the Administrative Agent effect set forth in Exhibit H to the Restated Credit Agreement, (i) dated the Effective Date, (ii) addressed to the Issuing Bank and (iii) covering such other matters relating to this Agreement as the Issuing Bank shall reasonably request, and the LendersAccount Party hereby requests such counsel to deliver such opinions.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under All legal matters incident to this Amendment Agreement and the issuance of Letters of Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there hereunder shall have been no changes be satisfactory to the Organization Documents of such Loan Party since August 2Issuing Bank and to Cravath, 2016) and (iv) such other documents and certifications as Swaine & ▇▇▇▇▇, counsel for the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectIssuing Bank.
(c) The Administrative Agent Issuing Bank shall have received a certificate signed by a Responsible Officer received, with respect to the Account Party, each of the Borrower certifying (i) that the conditions documents specified in this Section 5 have been satisfied, Sections 7(d) and (iie) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in of the aggregate, a Material Adverse EffectAmendment Agreement.
(d) The Administrative Agent Securitization Prepayments shall have received a certificate attesting to been made, and the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the BorrowerRestated Credit Agreement shall have become effective in accordance with its terms.
(e) The Administrative Agent Issuing Bank shall have received an executed copy of an agreement by a Sponsor Investor, in form all fees and substance reasonably acceptable other amounts due and payable on or prior to the Administrative AgentRestatement Closing Date, including, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and extent invoiced, reimbursement or payment of all reasonable out-of- pocket expenses required to be reimbursed or paid by the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective DateAccount Party hereunder.
(f) The Administrative Agent Account Party shall have received the list of Restaurants to be closed or refranchised referred to deposited in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable Cash Collateral Account an amount equal to the Administrative Agentaggregate face value of all Existing Letters of Credit.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This Amendment Agreement shall become effective upon as of the satisfaction first date (the “Effective Date”) when each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):shall have been satisfied:
(a) This Amendment the Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Party, the Administrative Agent and Majority Lenders under the Initial Revolving Facility (determined before giving effect to the replacement of any Non-Consenting Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby), (ii) incumbency certificates, (iii) certified copies all of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on Revolving Facility Lenders under the date hereof Initial Revolving Facility (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendmentthe replacement of any Non-Consenting Lenders), from the chief financial officer of L/C Issuers, and the Borrower.
(e) The Administrative Agent shall have received an executed copy (i) a counterpart of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds this Agreement signed on behalf of such issuance no later than the Fifth Amendment Effective Date.
party or (fii) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance written evidence reasonably satisfactory to the Administrative Agent, acknowledging Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(b) the Administrative Agent and agreeing each Lender (that certain of makes a request in accordance with the text shown as unmarked text in Exhibit A terms below) shall have received at least three (3) Business Days prior to the Fourth Amendment is notEffective Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, and has never beenincluding the PATRIOT Act, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.extent such documentation and other information has been requested by the Administrative Agent or such Lender not less than five (5) Business Days prior to the Effective Date;
(hc) The the representations and warranties set forth in Section 4 hereof above shall be true and correct.correct as of the Effective Date;
(d) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, dated the Effective Date and confirming the accuracy of the representations and warranties set forth in Section 4 above;
(e) the Administrative Agent shall have received customary officer’s certificates consistent with those delivered on the Closing Date and dated the Effective Date; provided that, in lieu of attaching organizational documents and/or evidence of incumbency of the officers of any Loan Party to such certificates, such certificates may certify that (i) since the Closing Date or such later date referred to in such certificates, there have been no changes to the organizational documents of such Loan Party and (ii) no changes have been made to the incumbency certificate of the officers of such Loan Party delivered on the Closing Date or such later date referred to in such certificates;
(i) All fees and expenses due and all Obligations of the Borrower with respect to the Initial Revolving Facility owing to the Administrative Agent and the Lenders and required to be paid on any Non-Consenting Lender being replaced or before the Fifth Amendment Effective Date terminated pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or Section 3 shall be paid in full to such Non-Consenting Lender concurrently with the closing of this Amendment).assignment or termination described in Section 3 and (ii) each Replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest and fees thereon; and
(jg) The the Administrative Agent shall have been reimbursed for received all fees payable thereto, to the Lead Arrangers or to any Lender on or prior to the Effective Date and, to the extent invoiced, all other amounts due and payable pursuant to this Agreement on or prior to the Effective Date, including, to the extent invoiced at least three (3) Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the (including reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be sufficient documentation for reimbursed or paid by the obligations set forth in Loan Parties under this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Agreement or under the Existing Credit Agreement.
Appears in 1 contract
Conditions. This Amendment The amendments set forth in Section 2 shall become effective upon on the satisfaction date (“Amendment Effective Date”) when each of the following conditions precedent no later than February 9, 2017 has been satisfied (or waived as set forth in Section 9.08 of the “Fifth Amendment Effective Date”Existing Credit Agreement):
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed and delivered by received from the Administrative Agent, the L/C Issuer, the Swingline Lender, each Loan Party, Party and Lenders constituting the Required Amendment Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent and the Lenders(which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed by received, on behalf of itself, the Lenders and the L/C Issuer on the Amendment Effective Date, a Responsible Officer written opinion of each Loan Party attaching (i) resolutions O’Melveny & ▇▇▇▇▇ LLP or other action authorizing counsel reasonably acceptable to the actions under this Amendment Administrative Agent, as counsel for the Loan Parties, and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of each local counsel specified on Schedule 1 or other counsel reasonably acceptable to the Organization Documents of such Loan PartyAdministrative Agent, in each casecase (a) dated the Amendment Effective Date, certified as true(b) addressed to the Administrative Agent, accurate the Lenders and complete and in effect the L/C Issuer on the date hereof Amendment Effective Date and (or a certification that there shall have been no changes c) in form and substance reasonably satisfactory to the Organization Documents of such Administrative Agent. Each Loan Party since August 2, 2016) and (iv) hereby instructs its counsel to deliver such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectopinions.
(c) The Administrative Agent shall have received from the Borrower a certificate signed by consent fee payable for the account of each Lender (other than a Responsible Officer Defaulting Lender) that has returned an executed signature page to this Agreement to the Administrative Agent at or prior to 5:00 p.m., New York City time on May 13, 2011 (the “Consent Deadline” and each such Lender, a “Consenting Lender”) equal to 0.10% of the Borrower certifying sum of (ix) that the conditions specified in this Section 5 have been satisfiedaggregate principal amount of Term Loans, if any, held by such Consenting Lender as of the Consent Deadline with respect to which a consent was delivered and (iiy) that there has been no event or circumstance since December 29the aggregate amount of the Revolving Facility Commitments, 2015 that has had or could be reasonably expected if any, of such Consenting Lender as of the Consent Deadline with respect to have, either individually or in the aggregate, which a Material Adverse Effectconsent was delivered.
(d) The Administrative Agent No Revolving Facility Loans shall have received a certificate attesting be outstanding under the Revolving Facility upon the effectiveness of the Amendment Effective Date (it being understood that any Revolving Facility Loans may be repaid immediately prior to the Solvency effectiveness of the Loan Parties on a consolidated basis before Amendment Effective Date and after giving effect the transactions contemplated hereby and, subject to this Amendment, from the chief financial officer terms of the BorrowerAmended Credit Agreement, Revolving Facility Loans may be drawn under the Amended Credit Agreement following the effectiveness of the Amendment Effective Date and the transactions contemplated hereby).
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable all fees payable thereto on or prior to the Administrative AgentAmendment Effective Date and, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds extent invoiced, all other amounts due and payable pursuant to the Borrower shall receive Loan Documents on or prior to the proceeds of such issuance no later than the Fifth Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Reaffirmation Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)executed and delivered by each party thereto.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This Amendment shall become effective upon The obligation of (x) the satisfaction Replacement Term A Lenders to make the Replacement Term A Loans and the effectiveness of the following amendments set forth in Section 4(a), Section 4(d)(2), Section 4(f) and Section 4(k)(1) above shall be subject to the applicable conditions precedent no later than February 9, 2017 set forth below (the date of satisfaction or waiver of such applicable conditions, the “Fifth Amendment Effective Replacement Term A Closing Date”):), (y) the Replacement Term B Lender to make the Replacement Term B Loans and the effectiveness of the amendments set forth in Section 4(b), Section 4(d)(1), Section 4(g), Section 4(h), Section 4(i) and Section 4(k)(2) above shall be subject to the applicable conditions precedent set forth below (the date of satisfaction or waiver of such applicable conditions, the “Replacement Term B Closing Date”) and (z) the effectiveness of the amendment set forth in Section 4(c), Section 4(e) and Section 4(j) above shall be subject to the earlier to occur of the Replacement Term A Closing Date and the Replacement Term B Closing Date:
(a) This Amendment With respect to the Replacement Term A Closing Date, the Agent shall have been duly executed and delivered by received from the Administrative Borrower, each other Loan Party, each Replacement Term A Lender (which Replacement Term A Lenders shall, taken together, constitute the Required Lenders) and the Agent an executed counterpart hereof or other written confirmation (in form satisfactory to the Agent) that such party has signed a counterpart hereof ;
(b) With respect to the Replacement Term B Closing Date, the Agent shall have received from the Administrative Borrower, each other Loan Party, each Replacement Term B Lender (which Replacement Term B Lenders shall, taken together, constitute the Required Lenders) and the Agent an executed counterpart hereof or other written confirmation (in form satisfactory to the Agent) that such party has signed a counterpart hereof;
(c) The Agent shall have received a Borrowing Request with respect to the Replacement Term A Loans or the Replacement Term B Loans, as applicable, not later than 2:00 p.m. (New York Time) three Business Days prior to the Replacement Term A Closing Date or the Replacement Term B Closing Date, respectively (or such later time as is reasonably acceptable to the Administrative Agent);
(d) The Agent shall have received a customary legal opinion of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, in its capacity as special counsel to the Administrative Borrower, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇, in its capacity as special Ohio counsel to the Ohio Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Marcus, in its capacity as special New Jersey and New York counsel to the New Jersey Loan Parties and New York Loan Parties, in each case, dated the Amendment No. 1 Closing Date, and addressed to the Administrative Agent and the Lenders.
(be) The Administrative Agent shall have received certificates (i) a certificate of each Loan Party, dated the Amendment No. 1 Closing Date, and executed by a secretary, assistant secretary or other Responsible Officer of each Loan Party attaching thereof, which shall (iA) resolutions or other action authorizing the actions under this Amendment certify that (x) either (I) attached thereto are a true and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies complete copy of the Organization Documents certificate or articles of incorporation, formation or organization of such Loan PartyParty certified by the relevant authority of its jurisdiction of organization, in each casewhich certificate or articles of incorporation, certified formation or organization have not been amended (except as true, accurate and complete and in effect on attached thereto) since the date hereof reflected thereon or (or a certification that II) there shall have been no changes to the Organization Documents certificate or articles of incorporation, formation or organization of such Loan Party since August 2the Closing Date (or date of joinder with respect to any Loan Party joined to Loan Documents after the Closing Date), 2016(y) either (I) attached thereto are a true and correct copy of the bylaws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Amendment No. 1 Closing Date, which by-laws or operating, management, partnership or similar agreement are in full force and effect or (II) there have been no changes to the by-laws or operating, management, partnership or similar agreement of such Loan Party since the Closing Date (or date of joinder with respect to any Loan Party joined to Loan Documents after the Closing Date), and (z) attached thereto are a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution and delivery of this Agreement, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and (ivB) either (I) identify by name and title and bear the signatures of the officers, managers, directors or other authorized signatories of such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized authorized to sign this Agreement or formed(II) certify that there have been no changes to the officers, and that each managers, directors or other authorized signatories of such Loan Party is validly existing, in good standing and qualified since the Closing Date (or date of joinder with respect to engage in business in each jurisdiction where its ownership, lease or operation of properties or any Loan Party joined to Loan Documents after the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(cClosing Date) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event a good standing (or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(dequivalent) The Administrative Agent shall have received a certificate attesting to the Solvency of the for such Loan Parties on a consolidated basis before and after giving effect to this Amendment, Party from the chief financial officer relevant authority of the Borrower.
(e) The Administrative Agent shall have received an executed copy its jurisdiction of an agreement by organization, dated as of a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Daterecent date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable With respect to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementReplacement Term A Closing Date, in form and substance reasonably satisfactory all fees due to the Administrative Agent, acknowledging and agreeing that certain of Replacement Term A Lender on the text shown as unmarked text in Exhibit Replacement Term A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Closing Date pursuant to that certain Fifth Amendment Fee Letter the Engagement Letter, dated as of February 8April 25, 2017 by and among 2018 between the Administrative Agent Borrower and the Borrower, ING shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for paid, and all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendmentto be paid or reimbursed to ING on the Replacement Term A Closing Date pursuant to such Engagement Letter that have been invoiced at least three business days prior to the Replacement Term A Closing Date shall have been paid;
(g) With respect to the Replacement Term B Closing Date, includingall fees due to the Agent on the Replacement Term B Closing Date pursuant to the Engagement Letter, without limitationdated as of April 18, the reasonable fees and disbursements of counsel for 2018 between the Administrative AgentBorrower and CSLF shall have been paid, and all reasonable and documented out-of-pocket expenses to be paid or reimbursed to the Agent on the Replacement Term B Closing Date pursuant to such Engagement Letter that have been invoiced at least three business days prior to the Replacement Term B Closing Date shall have been paid;
(h) All accrued interest (subject (x) with respect to the Initial Term A Loans, to Section 2(b) hereof and (y) with respect to the extent documented prior Initial Term B Loans, to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges Section 3(b) hereof) and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).any fees pursuant to
Appears in 1 contract
Conditions. This Amendment 3.1 The Purchaser shall become effective and shall procure that his agents shall forthwith upon the satisfaction signing of this Agreement conduct such review of the following conditions precedent no later than February 9assets, 2017 (liabilities, operations and affairs of the “Fifth Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent Company as it may reasonably consider appropriate and the Lenders.
(b) The Administrative Agent Vendor shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions provide and procure the Company to provide such assistance as the Purchaser or other action authorizing his agents may reasonably require in connection with such review so as to enable the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect review to be completed on or before 12:00 noon on the date hereof falling 30 days from the date of this Agreement or such later date as the Vendor and the Purchaser may agree under Clause 3.3.
3.2 Completion is conditional upon:
(or 1) the Purchaser being satisfied at its sole and absolute discretion with the results of the due diligence review to be conducted under Clause 3.1;
(2) the Vendor's Warranties (save and except the Vendor's Schedule of Exceptions) remaining true and accurate in all respect;
(3) the Vendor's Schedule of Exceptions having been delivered by the Vendor in a certification that there shall have been no changes form reasonably satisfactory to the Organization Documents of such Loan Party since August 2, 2016Purchaser as contemplated by Clause 6.10;
(4) and the Accounts having been delivered by the Vendor to the Purchaser;
(iv5) such other documents and certifications as the Administrative Agent may reasonably require Vendor having delivered to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, the Purchaser a consolidated audited financial statements for the Company prepared in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or accordance with US Generally Accepted Accounting Principles for the conduct period from the date of its business requires incorporation until the Last Accounts Date and such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which statements shall be in a form suitable for filing with the U.S. Securities and substance acceptable to Exchange Commission as required by Form 8-K promulgated under the Administrative Agent.Securities Act;
(g6) The Administrative Agent shall have the parties to this Agreement having received an agreeementall authorizations, consents, and approvals of governmental authorities and third parties that are necessary in order to complete the transactions contemplated hereby;
(7) the Parent Company and the Vendor having entered into a registration rights agreement in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that parties to this Agreement pursuant to which the Parent Company shall grant to the Vendor certain rights with respect to the registration of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part Purchase Consideration Shares; and
(8) there being sufficient authorized capital stock of the Credit Agreement, despite a scrivener’s error which included at least part Parent Company for the purpose of such text as unmarked text in Exhibit A to conducting the Fourth Amendmentissue of the Purchase Consideration Shares on Completion.
(h) The representations and warranties 3.3 If any of the conditions set forth out in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid Clause 3.2 has not been satisfied on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or 12:00 noon on the date hereof falling 30 days from the date of this Agreement or such later date as the Purchaser and the Vendor may jointly agree, this Agreement shall cease and terminate (save and except Clause 10 which shall continue to have full force and effect) and none of the parties to this Agreement shall have any obligations and liabilities hereunder against or towards one another save for any antecedent breaches of the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for terms hereof. Subject to the obligations set forth immediately preceding sentence in this Section 5(j); provided that supporting documentation Clause 3.3, none of the parties hereto shall take any action against any of the other parties hereto to claim for such summary statement is provided promptly thereafter)damages or to enforce specific performance or any other rights, remedies or relief following the cessation and termination of this Agreement in accordance with this Clause 3.3.
Appears in 1 contract
Conditions. This Amendment shall become be effective upon as of the satisfaction of Amendment Effective Date, provided the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):are satisfied:
(a) This Administrative Agent’s receipt of the following, each of which shall be originals or facsimile or portable document format (PDF) copies (followed promptly by originals) unless otherwise specified, each properly executed, each dated the Amendment shall have been duly executed Effective Date (or, in the case of certificates of governmental officials, a recent date before the date of the Amendment) and delivered by each Loan Party, the in form and substance satisfactory to Administrative Agent and the Lenders.its legal counsel:
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) executed counterparts of this Amendment and all other documents and instruments requested by Administrative Agent, sufficient in number for distribution to each Lender and Borrower;
(ii) a corporate certificate with resolutions in the form required by Administrative Agent;
(iii) such other certificates of resolutions or other action authorizing action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Lender may require evidencing the actions under identity, authority and capacity of each officer thereof authorized to act as an Authorized Officer in connection with this Amendment and the other Loan Documents to which such Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or Party is a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and party;
(iv) such other documents fully executed originals of the Ratification of Security Agreements and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedRelease, and that each Loan Party is validly existingRatification of and Amendment to Subsidiary Guaranty, in good standing the forms set forth on Schedules “1-A” and qualified to engage “1-B”, respectively, attached hereto, for each party thereto (collectively the “Ratifications”);
(v) fully-executed originals of the documents, instruments and agreements described in business in each jurisdiction where its ownershipSection 5.09(b) of the Agreement (as amended by this Amendment), lease or operation of properties or the conduct of its business requires such qualification, except as to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.New Domestic Subsidiary; and
(cvi) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying favorable written opinion (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing addressed to the Administrative Agent and the Lenders and required to be paid on or before dated the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as Date) of February 8▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 2017 by and among LLP, counsel for the Administrative Agent Borrower and the BorrowerSubsidiaries, shall have been paid (or shall be paid concurrently with substantially in the closing form of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with Annex 1 attached to this Amendment, includingand the Borrower hereby requests such counsel to deliver such opinion;
(b) Administrative Agent’s receipt of such other assurances, without limitationcertificates, documents, and consents as Administrative Agent reasonably may require;
(c) the reasonable Borrower shall have paid all fees required by the fee letters; and
(d) unless waived by Administrative Agent, Borrower shall have paid all fees, expenses and disbursements of any law firm or other external counsel for the Administrative Agent, Agent to the extent documented invoiced prior to or on the date hereof (for the avoidance of doubthereof, a summary statement plus such additional amounts of such fees, charges expenses and disbursements as shall constitute its reasonable estimate thereof incurred or to be sufficient documentation for incurred by it through the obligations set forth in closing proceedings as to this Section 5(j); Amendment (provided that supporting documentation for such summary statement is provided promptly thereafterestimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent).
Appears in 1 contract
Sources: Credit Agreement (Matrix Service Co)
Conditions. This The effectiveness of this Amendment shall become effective upon the satisfaction of is subject to the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment the Company, each other Loan Party and each Bank shall have been duly executed and delivered by each Loan Party, this Amendment and such other documents and instruments as the Administrative Agent and the Lenders.may reasonably require;
(b) The Administrative Agent the Company shall have received certificates executed by delivered, or caused to be delivered, to Agent, a Responsible Officer certificate of the corporate secretary or assistant corporate secretary of each Loan Party attaching pursuant to which such secretary or assistant secretary, on behalf of such Loan Party certifies as to (ix) resolutions or other action authorizing the actions under incumbency and signature of the Persons executing this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization any other Loan Documents delivered in connection herewith on behalf of such Loan Party, in each case(y) resolutions, certified as truewhich shall be attached thereto, accurate authorizing the execution, delivery and complete performance of this Amendment and in effect on such Loan Documents by such Loan Party, and (z) the date hereof (fact that the articles of incorporation, articles of organization, bylaws, limited liability company agreement or a certification that there shall have been no changes to the Organization Documents other organizational documents of such Loan Party have not been amended, modified or supplemented since August 2, 2016) and (iv) such other documents and certifications as the Administrative date on which certified copies thereof previously were delivered to Agent may reasonably require to evidence that each under the Loan Party is duly organized or formedDocuments, and that each Loan Party is validly existing, remain in good standing full force and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.effect;
(c) The Administrative Agent the Company shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfieddelivered, and (ii) that there has been no event or circumstance since December 29caused to be delivered, 2015 that has had or could be reasonably expected to haveAgent, either individually or in the aggregatewith respect to each Loan Party, a Material Adverse Effect.recent certificate of good standing issued by the Secretary of State of such Loan Party's jurisdiction of incorporation;
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof 5 of this Amendment shall be true and correct.;
(ie) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed received from the Company for the account of each Bank an upfront, fully-earned and non-refundable administrative fee in the amount of $81,250; and
(f) all reasonable and documented fees and out-of-pocket charges and other expenses incurred proceedings taken in connection with the transactions contemplated by this AmendmentAmendment and all documents, including, without limitation, the reasonable fees instruments and disbursements of counsel for the Administrative Agent, other legal matters incident thereto shall be reasonably satisfactory to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges Agent and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)its legal counsel.
Appears in 1 contract
Sources: Credit Agreement (Energy West Inc)
Conditions. This Amendment The consummation of the transactions set forth in Sections 3 and 4 hereof shall become effective upon be subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Administrative Agent shall have been duly executed and delivered by each Loan Partyreceived a written opinion (addressed to the Arrangers, the Administrative Agent Agent, the Issuers and the Lenders) of each of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for Holdings, the Borrower and the Restricted Subsidiaries, and (ii) local counsel in each jurisdiction where a Loan Party is organized or which provides the governing law for any Reaffirmation Agreement in respect of a Foreign Pledge Agreement or Foreign Security Agreement, and the laws of which are not covered by the opinion letter referred to in clause (i) of this paragraph. Each of Holdings and the Borrower hereby requests such counsel to deliver such opinions.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications certificates as the Administrative Agent or its counsel may reasonably require request relating to evidence that each Loan Party is duly organized or formedthe organization, existence and that each Loan Party is validly existing, in good standing (or equivalent concepts in any applicable jurisdiction) of Holdings, the Borrower and qualified the other Loan Parties, the authorization of the transactions contemplated by this Amendment and any other legal matters relating to engage Holdings, the Borrower and the other Loan Parties or this Amendment, all in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except form and substance reasonably satisfactory to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectAdministrative Agent and its counsel.
(c) The Administrative Agent shall have received a certificate certificate, dated the Restatement Effective Date and signed by a Responsible Financial Officer confirming that, after giving effect to this Amendment, no Default or Event of the Borrower certifying (i) that the conditions specified in this Section 5 Default shall have been satisfied, occurred and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effectcontinuing.
(d) The Administrative Agent shall have received a certificate attesting certificate, dated the Restatement Effective Date and signed by a Financial Officer confirming that the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, in the case of representations and warranties qualified as to the Solvency materiality, in all respects) on and as of the Loan Parties on Restatement Effective Date, except in the case of any such representation and warranty that expressly relates to a consolidated basis before prior date, in which case such representation and after giving effect to this Amendmentwarranty shall be true and correct in all material respects (or in all respects, from the chief financial officer as applicable) as of the Borrowersuch earlier date.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investorreceived, in form and substance reasonably acceptable at least one Business Day prior to the Administrative AgentRestatement Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act and 31 C.F.R. § 10.10.230 (the “Beneficial Ownership Regulation”), that has been requested at least ten Business Days prior to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Restatement Effective Date.
(f) The Administrative Agent shall have received received, to the list extent invoiced at least three Business Days prior to the Restatement Effective Date, reimbursement or payment of Restaurants all fees and reasonable out-of-pocket expenses (including fees, charges and disbursements of counsel), in each case required to be closed paid or refranchised referred to reimbursed by Holdings or the Borrower on the Restatement Effective Date under any agreement entered into by any of the Arrangers, the Administrative Agent and the Lenders, on the one hand, and Holdings or the Borrower, on the other hand (including the fees and expenses referenced in the definition of “Identified Restaurant Closures/Re-Franchisings Section 12 hereof).
(2017)” in the Credit Agreement which g) The Borrower shall be in form and substance acceptable have paid to the Administrative Agent, for the account of the Lenders and the Issuers, all unpaid interest and fees in respect of the Commitments and the Loans that have accrued through (but not including) the Restatement Effective Date.
(gh) The Administrative Agent shall have received an agreeementa reaffirmation agreement, in the form attached hereto as Exhibits B, C and substance reasonably satisfactory to D, duly executed by the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of Loan Parties specified on such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correctexhibit.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendmentreceived the documents specified on Exhibit E, including, without limitation, duly executed by the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or Loan Parties specified on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)exhibit.
Appears in 1 contract
Conditions. This Amendment shall become effective upon the The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent no later than February 9conditions: (1) that Agent has received the following: (A) payment in immediately available funds of all principal and interest owing under the Term Loan provided under Section 2.2 of the Credit Agreement; (B) this Agreement executed by Agent, 2017 the Lenders, and Borrower and a Consent of Term Loan Agent in the form attached to this Agreement executed by Term Loan Agent; (C) a Perfection Certificate (or supplement to Perfection Certificate), dated as of the “Fifth Amendment Effective Date”):
date hereof, together with all schedules contemplated thereby, executed by the Borrower; (aD) This Amendment shall have been duly a Pledged Interest Addendum executed and delivered by the Borrower with respect to the pledge of the Equity Interests described therein; (E) a Patent Security Agreement, Copyright Security Agreement and Trademark Security Agreement each Loan Partydated as of the date hereof, the Administrative together with all schedules contemplated thereby, executed by Agent and the Lenders.
Borrower; (bF) The Administrative a Letter Agreement regarding Inventory in the United States executed and delivered by ▇▇▇▇▇▇▇▇, Nautilus Fitness Canada, Inc., each other Foreign Subsidiary party thereto, Third-Party Term Loan Agent and Agent; (G) an Intercreditor Agreement executed and delivered by Agent and Third-Party Term Loan Agent and acknowledged and agreed to by the Loan Parties and an executed counterpart to the consent of Term Loan Agent in the form attached to this Amendment; (H) [Reserved]; (I) a certificate from the Secretary or Assistant Secretary dated as of the date hereof, (i) attesting to the resolutions of the Borrower’s Board of Directors authorizing its execution, delivery, and performance of this agreement and the other Loan Documents to which the Borrower is or will become a party, (ii) authorizing officers of Borrower to execute the same, (iii) attesting to the incumbency and signatures of such specific officers of Borrower and (iv) certifying and attaching the Borrower’s Governing Documents, as amended, modified or supplemented to the date hereof; 4 167062867 (J) a certificate of status with respect to the Borrower, dated as of a recent date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower, which certificate shall indicate that the Borrower is in existence or good standing, as applicable, in such jurisdiction; (K) certificates of status with respect to the Borrower, dated as of a recent date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of the Borrower) in which the failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that the Borrower is in existence or good standing, as applicable, in such applicable jurisdictions; (L) evidence that the Third-Party Term Loan Lenders shall have advanced additional Third- Party Term Loan Obligations in a principal amount of $30,000,000 concurrently therewith, and Agent shall have received certificates executed by a Responsible Officer copies of each material Third-Party Term Loan Party attaching Document containing terms and conditions satisfactory to Agent; (iM) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement a customary opinion of counsel regarding such matters as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications Borrower as the Administrative Agent or its counsel may reasonably require to evidence that each Loan Party is duly organized or formedrequest, and that each Loan Party which is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, otherwise in form and substance reasonably satisfactory to the Administrative AgentAgent (it being understood that such opinion shall be limited to this Agreement, acknowledging and agreeing that certain of the text shown as unmarked text other Loan Documents executed or delivered in Exhibit A connection herewith by Borrower and shall not be required to the Fourth Amendment is notinclude matters of Washington state law); (N) that Agent has received such additional agreements, certificates and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties documents set forth in Section 4 hereof shall be true on Agent’s closing checklist; (2) that (A) Borrower has paid the Amendment Fee; and correct.
(iB) All fees and expenses due and owing unless waived by Agent, ▇▇▇▇▇▇▇▇ has paid to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendmentfees, includingcharges, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to Agent to the extent documented invoiced prior to or on the date hereof (for the avoidance of doubtthis Agreement, a summary statement plus such additional amounts of such reasonable fees, charges charges, and disbursements shall as constitute its reasonable estimate of such reasonable fees, charges, and disbursements incurred or to be sufficient documentation for incurred by it through the obligations set forth in closing of this Section 5(jAgreement (provided, that such estimate will not thereafter preclude a final settling of accounts between Borrower and Agent); provided and (3) that supporting documentation for such summary statement is provided promptly thereafter)all legal matters incident to the execution and delivery of this Agreement are satisfactory to Agent and its counsel.
Appears in 1 contract
Sources: Credit Agreement (Nautilus, Inc.)
Conditions. This The effectiveness of this Amendment shall become effective upon the satisfaction of is subject to the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This the execution and delivery of this Amendment by the Company, Guarantors, Agents, and each of the Lenders;
(b) the execution and delivery of that certain Seventh Amended and Restated Fee Letter, dated as of the date hereof, by and between the Company and the Administrative Agent, and the payment of all fees required to be paid thereby on or prior to the Eleventh Amendment Effective Date;
(c) the truth and accuracy of the representations and warranties contained in Section 4;
(d) Administrative Agent shall have been duly received (i) sufficient copies of each Organizational Document executed and delivered by each Loan Credit Party, as applicable, and, to the Administrative Agent and extent applicable, certified as of a recent date by the Lenders.
(b) The Administrative Agent shall have received certificates executed by appropriate governmental official, for each Lender, each dated the Eleventh Amendment Effective Date or a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, recent date prior thereto; (ii) signature and incumbency certificatescertificates of the officers of each such Person executing the Eleventh Amendment, the Seventh Amended and Restated Fee Letter or any other Credit Document executed in connection therewith (collectively, the “Eleventh Amendment Documents”); (iii) certified copies resolutions of the Organization Board of Directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of the Eleventh Amendment Documents to which it is a party or by which it or its assets may be bound as of such Loan Party, in each casethe Eleventh Amendment Effective Date, certified as trueof the Eleventh Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, accurate and complete and in effect on the organization or formation, each dated a recent date hereof (or a certification that there shall have been no changes prior to the Organization Documents of such Loan Party since August 2, 2016) Eleventh Amendment Effective Date; and (ivv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.request;
(e) The Administrative Agent each Credit Party shall have received an executed copy obtained all Governmental Authorizations and all consents of an agreement by a Sponsor Investorother Persons, in form each case that are necessary or advisable in connection with the transactions contemplated by the Eleventh Amendment Documents, and substance reasonably acceptable to each of the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which foregoing shall be in form full force and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, effect and in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.;
(hf) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and its counsel shall have received originally executed copies of the Lenders and required favorable written opinions of Winthrop & Weinstine, P.A., counsel for Credit Parties, as to be paid on or before such matters as Administrative Agent may reasonably request, dated as of the Fifth Eleventh Amendment Effective Date pursuant and otherwise in form and substance reasonably satisfactory to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Administrative Agent); and
(g) the Borrower, Company shall have been paid (or shall be paid concurrently with all fees, costs and expenses of the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred Agents in connection with this AmendmentAmendment and all transactions contemplated hereby, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges costs and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)expenses of Agents’ counsel.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Speed Commerce, Inc.)
Conditions. This Notwithstanding any other provision of this Amendment, this Amendment shall not become effective upon the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):unless and until:
(a) This Amendment shall have a. It has been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and all parties to the Credit Agreement as amended hereby;
b. The First Amendment to Amended and Restated Security Agreement, (ii) incumbency certificates, (iii) certified copies to be dated as of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there the “Security Agreement Amendment”), shall have been no changes executed and delivered by the Company, in form and substance satisfactory to the Organization Documents Lender;
c. The Lender shall have received certificates as of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as a recent date of the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease (or operation comparable standing) of properties or the conduct Company under the laws of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.jurisdiction of organization;
(c) d. The Administrative Agent Lender shall have received a certificate signed by a Responsible Officer of an appropriate officer of the Borrower Company certifying as to the incumbency and genuineness of the signature of each officer of the Company executing this Amendment and the Security Agreement Amendment and certifying that attached thereto is a true, correct and complete copy of (i) the articles of incorporation of the Company and all amendments thereto, certified as of a recent date by the Wisconsin Department of Financial Institutions, (ii) the bylaws of the Company all amendments thereto, (iii) the resolutions duly adopted by the board of directors of the Company authorizing the borrowings contemplated hereunder and the execution, delivery and performance of this Amendment and the Security Agreement Amendment;
e. The Lender shall have received (i) searches of UCC filings in the jurisdiction of incorporation of the Company, copies of the financing statements on file in such jurisdiction and evidence that the conditions specified in this Section 5 have been satisfied, no Liens exist other than Permitted Liens and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.tax lien and judgment searches; and
(d) f. The Administrative Agent Company shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investordelivered such other corporate documents as Lender or its counsel may reasonably request, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth AmendmentLender.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This Amendment shall become effective upon On the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Second Lien Closing Date”)::
(a) This Amendment The Administrative Agent shall have been duly executed received, on behalf of itself and delivered by the Lenders, a favorable written opinion of (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower and other Loan Parties, substantially to the effect set forth in Exhibit J-1 and (ii) Blank Rome LLP Pennsylvania local counsel for the Administrative Agent, substantially to the effect set forth in Exhibit J-2, each (A) dated the Second Lien Closing Date, (B) addressed to the Administrative Agent, the Arranger, the Syndication Agent and the Lenders and (C) covering such matters relating to the Loan Party, Documents and the Transactions as the Arranger or the Administrative Agent shall reasonably request and which are customary for transactions of the type contemplated herein, and the LendersBorrower and the other Loan Parties hereby request such counsel to deliver such opinion.
(b) The Administrative Agent shall have received certificates executed (i) a copy of the certificate or articles of incorporation or other formation documents, including all amendments thereto, of the Pledgor and of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a Responsible Officer certificate as to the good standing of the Pledgor and of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended herebyof a recent date, from such Secretary of State; (ii) incumbency certificates, (iii) certified copies a certificate of the Organization Documents Secretary or Assistant Secretary of the Pledgor and of each Loan Party dated the Second Lien Closing Date and certifying (A) that attached thereto is a true and complete copy of the LLC Agreement of such Pledgor or Loan Party, in each caseas applicable, certified as true, accurate and complete and in effect on the Second Lien Closing Date and at all times since a date hereof (or a certification that there shall have been no changes prior to the Organization Documents date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the members of such Pledgor or Loan Party Party, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, in the case of the Borrower, the borrowings hereunder, in the case of each Pledgor or Loan Party, as applicable, the granting of the Liens contemplated to be granted by it under the Security Documents and, in the case of each Subsidiary Guarantor, if any, the Guaranteeing of the Obligations as contemplated by the Guarantee and Collateral Agreement, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents of such Pledgor or Loan Party, as applicable, have not been amended since August 2the 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 executing any Loan Document or any other document delivered in connection herewith on behalf of such Pledgor or Loan Party, 2016as applicable; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii), which shall be incorporated in the certificate of the Secretary or Assistant Secretary noted above; and (iv) such other documents and certifications as the Administrative Agent Agent, the Arranger or the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectrequest.
(c) The Administrative Agent shall have received a certificate certificate, dated the Second Lien Closing Date and signed by a Responsible Officer of the Borrower certifying (i) that Borrower, confirming compliance with the conditions specified precedent set forth in this Section 5 have been satisfied, paragraphs (p) and (iiq) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effectof this Section.
(d) The Administrative Agent shall have received (i) this Agreement, executed and delivered by a certificate attesting duly authorized officer of each of the Borrower, (ii) the Guarantee and Collateral Agreement, executed and delivered by a duly authorized officer of each of the Borrower and each Subsidiary Guarantor, (iii) the Pledge and Security Agreement executed by the parties thereto, (iv) the Intercreditor Agreement executed by the parties thereto, (v) the Lien Subordination Agreement executed by the parties thereto (including a joinder thereto executed by U.S. Bank National Association, the Collateral Agent and the First Lien Collateral Agent), (vi) if requested by any Lender pursuant to Section 2.04, a promissory note or notes conforming to the Solvency requirements of such Section and executed and delivered by a duly authorized officer of the Loan Parties on Borrower and (vii) a consolidated basis before Lender Addendum executed and after giving effect to this Amendment, from the chief financial officer of delivered by each Lender and accepted by the Borrower.
(e) The Administrative Agent Collateral Agent, for the ratable benefit of the Secured Parties, shall have received an executed copy of an agreement by a Sponsor Investorbeen granted on the Second Lien Closing Date second priority perfected Liens on the Collateral (subject to, in form and substance reasonably acceptable the case of all Collateral other than Pledged Collateral, only to Permitted Liens and, in the Administrative Agent, to purchase Qualified Securities case of Pledged Collateral other than the Equity Interests in the Borrower to non-consensual Permitted Liens), subject, in each case, to any applicable filing or recording requirements. The Pledged Collateral shall have been duly and validly pledged under the Guarantee and Collateral Agreement or the Pledge and Security Agreement, as applicable, to the Collateral Agent, for not less than $18,500,000 the ratable benefit of the Secured Parties, and certificates representing such Pledged Collateral, accompanied by instruments of transfer and stock powers endorsed in gross cash proceeds and blank, shall be in the Borrower shall receive actual possession of the proceeds of such issuance no later than the Fifth Amendment Effective DateCollateral Agent.
(f) The Administrative Collateral Agent shall have received a duly executed Perfection Certificate dated on or prior to the Second Lien Closing Date. The Collateral Agent shall have received the list results of Restaurants a recent Lien and judgment search in each relevant jurisdiction with respect to the Pledgor, the Borrower and those of the Subsidiaries that shall be Subsidiary Guarantors or shall otherwise have assets that are included in the Collateral, and such search shall reveal no Liens on any of the assets of the Borrower or any of such Subsidiaries except, in the case of Collateral other than Pledged Collateral, for Permitted Liens and except for Liens to be closed discharged on or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable prior to the Administrative Second Lien Closing Date pursuant to documentation reasonably satisfactory to the Collateral Agent.
(g) After giving effect to the Transactions and the other transactions contemplated hereby, the Borrower shall have outstanding no Indebtedness or preferred stock other than (i) the Term Loans, (ii) the First Lien Term Loans and (iii) other limited Indebtedness satisfactory to the Arranger and the Administrative Agent and set forth on Schedule 6.01(a).
(h) The Arranger and the Administrative Agent shall have received an agreeementunaudited financial statements of the Borrower for the fiscal year ending December 31, 2005 and the fiscal quarter ending March 31, 2006.
(i) The Arranger and the Administrative Agent shall have received projections of the Borrower for the years 2006 through 2009, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(hj) The Arranger and the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying that the Borrower is solvent, after giving effect to the Transactions and the other transactions contemplated hereby (as measured by the tests described in Section 3.23).
(k) All governmental and (to the extent such consent could be material) third party consents and approvals with respect to the Transactions to the extent required shall have been obtained, all applicable appeal periods shall have expired and there shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the Transactions or the other transactions contemplated hereby.
(l) The Arranger and the Administrative Agent shall have received, at least three Business Days prior to the Second Lien Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(m) The Administrative Agent shall have received (and shall provide to each of the Arranger and the Collateral Agent where appropriate) evidence that insurance required by Section 5.02 is in effect including the receipt of the insurance certificates required by the Guarantee and Collateral Agreement; such certificates shall name the Collateral Agent as the loss payee for the benefit of the Secured Parties, their successors and assigns.
(n) The Borrower shall have paid to the Arranger and the Administrative Agent any and all fees and expenses thereof that are due and owing as of the Second Lien Closing Date in connection with the Transactions.
(o) The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.03).
(p) The representations and warranties set forth in Section 4 hereof each Loan Document shall be true and correctcorrect in all material respects on and as of the Second Lien Closing Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date.
(iq) All fees At the time of and expenses due and owing to immediately after the Administrative Agent and the Lenders and required to be paid on Second Lien Closing Date, no Default or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as Event of February 8, 2017 by and among the Administrative Agent and the Borrower, Default shall have been paid (or shall occurred and be paid concurrently with the closing of this Amendment)continuing.
(jr) The Administrative Agent shall have been reimbursed received the Title Policy, which shall provide for all reasonable insurance, effective as of the Second Lien Closing Date, and documented fees shall otherwise be in form and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for substance satisfactory to the Administrative Agent.
(s) The Administrative Agent shall have received a copy of an order issued by FERC authorizing Borrower to sell electricity at market-based rates.
(t) The Administrative Agent shall have received reasonably satisfactory evidence that all potable water, sewer, telephone, electric and all other utility services necessary for the ownership, operation and maintenance of the Project are either contracted for, or readily available on commercially reasonable terms, at the Project.
(u) The Administrative Agent shall have received a copy of the Survey and such Survey shall be in form and substance reasonably satisfactory to the extent documented prior to or on Administrative Agent.
(v) The Borrower shall have received proceeds of the date hereof (for First Lien Term Loans in the avoidance amount of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)$100,000,000.
Appears in 1 contract
Conditions. This Amendment Each Lenders' obligation to make the Loans shall become effective upon be subject to the prior satisfaction of the following conditions precedent no later than February 9conditions, 2017 (except to the “Fifth Amendment Effective Date”):extent waived by such Lender in writing:
(a) This Amendment Company shall have been duly reimbursed Lenders for the fees and expenses for which Company is liable pursuant to the terms of Section 7.4, below, to the extent documented to Company as of the Closing.
(b) With respect to the Collateral Real Estate:
(i) Company shall have provided evidence reasonably satisfactory to the Lenders that the purchase price paid by the Company for the Collateral Real Estate and the project costs incurred for improvements to the Collateral Real Estate aggregate not less than Twenty Million Dollars ($20,000,000.00);
(ii) none of the parcels shall be subject to any Lien unacceptable to the Lenders;
(iii) Lender shall have received title commitments (the "Title Commitments") with respect to each parcel and the commitment for the issuance by Chicago Title Insurance Company of an ALTA lender's policy of title insurance (without standard exceptions and with such endorsements as directed by the Lenders);
(iv) Company shall have executed and delivered by caused to be duly filed or recorded security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust and other related agreements in favor of RDVEPCO, L.L.C. as collateral agent for the Lenders (collectively the "Security Documents") in forms reasonably acceptable to the Lenders and their counsel encumbering each Loan Party, the Administrative Agent and have shall provided evidence thereof to the Lenders.
(bc) The Administrative Agent Company shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing issued the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes Warrants to Lenders pro rata according to the Organization Documents amounts of such their respective Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectCommitments.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent Lenders shall have received an executed copy opinion of an agreement by a Sponsor InvestorRoge▇▇ & ▇ard▇▇, in form and substance reasonably acceptable counsel to the Administrative AgentCompany, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative AgentLenders and their counsel.
(e) Each of the representations and warranties of the Company set forth in this Agreement or incorporated herein by reference or set forth in any statement or schedule delivered pursuant to this Agreement are true and correct in all material respects as of the date of execution of this Agreement and as of the date of the Closing Date as if made on such date;
(f) The Company shall not be in default with respect to any of its covenants and agreements set forth in Article VI of this Agreement or set forth elsewhere in this Agreement;
(g) The Administrative Agent No Default or Event of Default shall have received an agreeement, in form occurred and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.be continuing; and
(h) The representations and warranties set forth in Section 4 hereof None of the Lenders shall be true and correct.
(i) All fees and expenses due and owing have defaulted on its obligation to make its Loan to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)Company.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This Amendment Agreement shall become effective upon as of the satisfaction first date (the “2017 Refinancing Effective Date”) when each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):shall have been satisfied:
(a) This Amendment the Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Party, the 2017 Term Lender, each Revolving Facility Lender, and the Administrative Agent and (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Lenders.Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(b) The the Administrative Agent shall have received certificates (i) any required notice of prepayment of Term B Loans pursuant to Section 2.11(a) of the Credit Agreement and (ii) any required notice of borrowing of 2017 Term Loans pursuant to Section 2.03 of the Credit Agreement; provided, in each case, that such notice of prepayment and notice of borrowing shall be delivered in accordance the time periods specified in Sections 2.10(d) and 2.03, as applicable, of the Credit Agreement or such shorter period as the Administrative Agent may agree;
(c) the representations and warranties set forth in Section 4 above shall be true and correct as of the date hereof;
(d) the Administrative Agent shall have received a certificate, dated the 2017 Refinancing Effective Date and executed by a Responsible Officer of the Borrower, confirming the accuracy of the representations and warranties set forth in Section 4 above;
(e) the Administrative Agent shall have received, on behalf of itself, the 2017 Term Lender, the L/C Issuers and the Revolving Facility Lenders, a favorable written opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as New York and Delaware special counsel for the Loan Parties, (B) ▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, as Nevada counsel for the Loan Parties and (C) Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC, as Louisiana counsel for the Loan Parties, in each Loan Party attaching case (i) resolutions or other action authorizing dated the actions under this Amendment and the Credit Agreement as amended herebydate hereof, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable addressed to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds 2017 Term Lender, the L/C Issuers and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
Revolving Facility Lenders and (fiii) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging Agent and agreeing that certain covering such other matters relating to this Agreement as the Administrative Agent shall reasonably request;
(f) the Administrative Agent shall have received customary closing certificates consistent with those delivered on the Closing Date;
(g) the payment of the text shown as unmarked text in Exhibit A Term B Loan Repayment Amount by the Borrower to the Fourth Amendment is not, and has never been, effectively part Administrative Agent for the accounts of the Credit Agreementexisting Term B Lenders, despite as a scrivener’s error which included at least part voluntary prepayment in full of such text as unmarked text in Exhibit A to the Fourth Amendment.Term B Loans outstanding on the 2017 Refinancing Effective Date, shall occur simultaneously with the Borrowing of the 2017 Term Loans;
(h) The representations either (i) the payment of the ▇▇▇▇▇▇▇▇ Loan Repayment Amount by the Borrower to Credit Suisse AG, Cayman Islands Branch, as administrative agent under the ▇▇▇▇▇▇▇▇ Existing Credit Facility, shall occur simultaneously with the Borrowing of the 2017 Term Loans and warranties set forth in Section 4 hereof the ▇▇▇▇▇▇▇▇ Entities shall cease to constitute Excluded Subsidiaries or (ii) the ▇▇▇▇▇▇▇▇ Loan Repayment Amount shall be true and correct.deposited into the ▇▇▇▇▇▇▇▇ Escrow Account (as defined below) in accordance with Section 7 of this Agreement; and
(i) All any fees and reasonable out-of-pocket expenses due (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) owing by the Borrower to the Administrative Agent and the Lenders 2017 Refinancing Arrangers and required invoiced prior to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, date hereof shall have been paid in full (or shall be paid concurrently subject to any agreed-upon limits contained in any letter agreement with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred or its affiliates or such 2017 Refinancing Arrangers or their respective affiliates entered into in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafterAgreement).
Appears in 1 contract
Sources: Incremental Assumption Agreement and Amendment No. 1 (Caesars Acquisition Co)
Conditions. This Amendment Each Commitment Increase shall become effective upon on the satisfaction of proposed effective date set forth in the following conditions precedent no Borrowers’ request for a Commitment Increase or such later than February 9, 2017 (the “Fifth Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, date as the Administrative Agent and the Lenders.
Borrowers agree (b) The the “Increase Effective Date”), which in any event shall be on or after the date on which the Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching received:
(i) resolutions or other action authorizing the actions under this Amendment an Additional Lender Supplement for each Additional Lender participating in such Commitment Increase and the Credit Agreement as amended herebyan Increasing Lender Supplement for each Increasing Lender participating in such Commitment Increase, in each case duly executed by all parties thereto;
(ii) incumbency certificatesa certificate of a Principal Financial Officer dated such date and certifying that, on a pro forma basis (assuming that such Incremental Commitments are fully drawn), WIL-Ireland shall be in compliance with each of the Financial Covenants as of the most recently ended Fiscal Quarter for which financial statements are available;
(iii) certified copies such documents and opinions consistent with those delivered on the Effective Date as to the organizational power and authority of the Organization Documents of Borrowers to borrow hereunder after giving effect to such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications Commitment Increase as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.request;
(civ) The such evidence of appropriate corporate or other organizational authorization on the part of the Borrowers, WIL-Ireland and the other Obligors with respect to such Commitment Increase as the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be may reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.request;
(dv) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement if requested by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed an opinion or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementopinions, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A from counsel to the Fourth Amendment is not, Borrowers and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A Obligors reasonably satisfactory to the Fourth Amendment.Administrative Agent, covering such matters relating to such Commitment Increase as the Administrative Agent may reasonably request;
(hvi) The a certificate of a Responsible Officer of WIL-Ireland, dated such Increase Effective Date, certifying that (A) the representations and warranties set forth in Section 4 hereof Article V and in the other Loan Documents are true and correct in all material respects (except to the extent qualified by materiality or reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct.correct in all respects) as of, and as if such representations and warranties were made on, such Increase Effective Date (unless such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall continue to be true and correct in all material respects (except to the extent qualified by materiality or reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct in all respects) as of such earlier date) and (B) no Default or Event of Default has occurred and is continuing on such Increase Effective Date; and
(ivii) All fees other customary closing certificates and expenses due and owing documentation (similar to the Administrative Agent and the Lenders and documentation required to be paid delivered on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agentunder Section 5.01, to the extent documented prior applicable) relating to or on such Commitment Increase as the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Administrative Agent may reasonably request.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Weatherford International PLC)
Conditions. This Amendment shall become effective upon as of the satisfaction first date (the “Amendment Effective Date”) when each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):shall have been satisfied:
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent (or its counsel) shall have received from each party hereto (including the Required Lenders and the Required TLA/RC Lenders.) either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy, portable document format (.pdf) or email transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Administrative Agent no Default or Event of Default shall have received certificates executed by a Responsible Officer occurred and be continuing or shall result from any extension of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect credit requested to be made on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.Amendment Effective Date;
(c) The the Administrative Agent shall have received a certificate certificate, dated the Amendment Effective Date and signed by a Responsible Officer of the Borrower certifying (i) that Parent Borrower, confirming compliance with the conditions specified set forth in clause (b) of this Section 5 have 4.1 and that each of the representations and warranties made by any Loan Party contained in Section 3.1 above shall be true and correct on and as of the Amendment Effective Date after giving effect to the Amendment and to any extension of credit requested to be made on the Amendment Effective Date with the same effect as though such representations and warranties had been satisfied, made on and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.as of such date;
(d) The the Administrative Agent shall have received, for the benefit of each Lender that is a party hereto on the Amendment Effective Date, an amendment fee in an amount equal to 0.20% of the amount of such Lender’s outstanding Term Loans and outstanding Revolving Commitments on the Amendment Effective Date; and
(e) to the extent invoiced at least one (1) Business Day prior to the Amendment Effective Date, the Administrative Agent shall have received a certificate attesting all fees and other amounts due and payable to it or its Affiliates on or prior to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable , including, to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementextent invoiced, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain reimbursement or payment of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part all of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all Persons’ reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the (including reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall of counsel) required to be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
Appears in 1 contract
Conditions. This Amendment The effectiveness of the amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Agreement shall become effective upon be subject to the satisfaction (or waiver) of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Partyof the Borrower, the Administrative Parent, the Required Lenders under (and as defined in) the Existing Credit Agreement and any New Class D Lenders either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Agent and the Lenders(which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received certificates executed by from each Subsidiary, if any, that is a Responsible Officer of each Subsidiary Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents Restatement Effective Date, and is not already a Guarantor, a supplement to the Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectPerson.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer favorable written opinion (addressed to the Agent and the Lenders (as defined in the Amended Credit Agreement) and dated the Restatement Effective Date) of the Borrower certifying each of (i) that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Director, Administration & Legal and Secretary of the conditions specified in this Section 5 have been satisfiedBorrower, (ii) Shearman & Sterling LLP, counsel to the Loan Parties, and (iiiii) that there has been no event or circumstance since December 29if reasonably requested by the Agent, 2015 that has had or could be reasonably expected to havelocal counsel in Luxembourg, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before Brazil and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor InvestorScotland, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementeach case, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A each case covering such other matters relating to the Fourth Amendment is notLoan Parties, the Loan Documents or the Restatement Transactions as the Agent or the Required Lenders shall reasonably request. The Parent and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of Borrower hereby request such text as unmarked text in Exhibit A counsel to the Fourth Amendmentdeliver such opinions.
(hd) The Agent shall have received such documents and certificates as the Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties and the authorization of the Restatement Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions, all in form and substance satisfactory to the Agent and its counsel.
(e) The representations and warranties of the Loan Parties set forth in Section 4 hereof the Loan Documents shall be true and correct.
(i) All fees correct in all material respects as of the Restatement Effective Date, no Default shall have occurred and expenses due and owing to be continuing as of the Administrative Agent Restatement Effective Date and the Lenders and required to be paid on or before Agent shall have received a certificate, dated the Fifth Amendment Restatement Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as and signed by the President & Chief Executive Officer, an Executive Vice President or a Financial Officer of February 8, 2017 by and among each of the Administrative Agent Parent and the Borrower, shall have been paid (or shall be paid concurrently with confirming the closing of this Amendment)foregoing.
(jf) The Administrative Agent shall have been reimbursed for received (i) all reasonable and documented fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket charges expenses required to be reimbursed or paid by the Borrower under the Loan Documents, (ii) all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under paragraphs (a) and (b) of Section 2.11 of the Existing Credit Agreement and (iii) any prepayments of principal required pursuant to Section 4(b) or Section 7(c). If any LC Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon.
(g) The Lenders (as defined in the Amended Credit Agreement) shall have received all documentation and other expenses incurred information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. The Agent shall notify the Borrower and the Lenders (as defined in connection with this Amendmentthe Amended Credit Agreement) of the Restatement Effective Date, including, without limitationand such notice shall be conclusive and binding. Notwithstanding the foregoing, the reasonable fees amendment and disbursements restatement of counsel for the Administrative Agent, to Existing Credit Agreement as contemplated hereby shall not become effective unless each of the extent documented foregoing conditions is satisfied (or waived) at or prior to 5:00 p.m., New York City time, on August 31, 2012 (and, in the event such conditions are not so satisfied or on waived, the date hereof (for the avoidance Existing Credit Agreement shall remain in effect without giving effect to any provisions of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafterAgreement).
Appears in 1 contract
Sources: Revolving Credit Agreement (American Axle & Manufacturing Holdings Inc)
Conditions. This Amendment The amendments set forth in Section 2 shall become effective upon on the satisfaction date (“Effective Date”) when each of the following conditions precedent no later than February 9, 2017 has been satisfied (or waived by the “Fifth Amendment Effective Date”Administrative Agent and each of the Extending Lenders):
(a) This Amendment The Administrative Agent shall have been duly executed received from Holdings, the Borrowers, the Issuing Bank and delivered by each Loan Party, the Extending Lenders either (a) a counterpart of this Agreement signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent and the Lenders(which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed by received, on behalf of itself, the Lenders and each Issuing Bank on the Effective Date, a Responsible Officer written opinion of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the Credit Agreement as amended herebyBorrowers, in form and substance reasonably satisfactory to the Administrative Agent, and (ii) incumbency certificates, local U.S. and foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 1 hereto (iii) certified copies of other than any such opinions to be delivered after the Organization Documents of such Loan PartyEffective Date pursuant to Section 5 below), in each casecase (a) dated the Effective Date, certified as true, accurate and complete and in effect (b) addressed to each Issuing Bank on the date hereof Effective Date, the Administrative Agent and the Lenders and (or a certification that there shall have been no changes c) in form and substance reasonably satisfactory to the Organization Documents of such Loan Party since August 2, 2016) Administrative Agent and (iv) covering such other documents and certifications matters relating to the Extension as the Administrative Agent may shall reasonably require to evidence that each Loan Party is duly organized or formedrequest, and that each Loan Party is validly existing, in good standing of Holdings and qualified each Borrower hereby instructs its counsel to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires deliver such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectopinions.
(c) The Administrative Agent shall have received a certificate signed by from a Responsible Financial Officer of the U.S. Borrower, dated the Effective Date, certifying the solvency of the U.S. Borrower certifying (i) and its subsidiaries, on a consolidated basis after giving effect to this Extension to be made on the Effective Date, in a form substantially similar to such certificate that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected previously provided in connection with the closing relating to have, either individually or in the aggregate, a Material Adverse Effectoccurrence of the Third Incremental Effective Date.
(d) The On the Effective Date, (i) the conditions set forth in paragraphs (b) and (c) of Section IV of the Existing Credit Agreement shall be satisfied, (ii) the Administrative Agent shall have received a certificate attesting of a Responsible Officer of the U.S. Borrower, dated the Effective Date, confirming compliance with the conditions set forth in clause (i) of this paragraph (d), and (iii) the Administrative Agent shall have received customary closing certificates, dated the Effective Date, in form substantially similar to the Solvency closing certificates that were previously provided in connection with the closing relating to the occurrence of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the BorrowerThird Incremental Effective Date.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investorreceived, in form and substance reasonably acceptable to the Administrative Agentextent invoiced, all amounts due and payable pursuant to the Loan Documents on or prior to the Effective Date, including, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective DateLoan Parties hereunder or under any Loan Document.
(f) The Administrative Agent A Reaffirmation Agreement substantially in the form of Exhibit B hereto shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agentbeen delivered by each party thereto.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory updated Perfection Certificate on or prior to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth AmendmentEffective Date.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Incremental Assumption Agreement (Momentive Specialty Chemicals Inc.)
Conditions. This Amendment Agreement shall become effective upon as of the satisfaction first date on which each of the following conditions precedent no later than February 9, 2017 is satisfied (the “Fifth Amendment Commitment Increase Effective Date”):
(a) This Amendment the Administrative Agent shall have been duly executed and delivered by received from each Loan Party, party hereto 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 have received favorable written opinions (addressed to the Administrative Agent and the Lenders.Incremental Revolving Lenders and dated the Commitment Increase Effective Date) of each of (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius, LLP, counsel for the Company, substantially in the form of Exhibit C-1 of the Credit Agreement and (ii) the general counsel of the Company, substantially in the form of Exhibit C-2 of the Credit Agreement;
(bc) The the Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications certificates as the Administrative Agent may reasonably require request relating to evidence that each Loan Party is duly organized or formedthe formation, existence and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer authorization of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investortransactions contemplated hereby, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, all in form and substance reasonably satisfactory to the Administrative Agent, acknowledging Agent and agreeing that certain its counsel;
(d) the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the text shown as unmarked text in Exhibit A Credit Agreement shall be satisfied (without giving effect to the Fourth Amendment is not, and has never been, effectively part phrase “As of the date hereof,” in Section 3.06 or 3.07(b) of the Credit Agreement) on and as of the Commitment Increase Effective Date, despite and the Administrative Agent shall have received a scrivener’s error which included at least part certificate, dated the Commitment Increase Effective Date and signed by the chief financial officer of the Company, confirming compliance with such text as unmarked text in Exhibit A to the Fourth Amendment.conditions;
(he) The representations and warranties set forth in Section 4 hereof the Company shall be true and correct.
(i) All fees and expenses due and owing have paid to the Administrative Agent for the account of each Increasing Lender and each Non-Increasing Lender any and all accrued but unpaid interest on the Lenders and required to be paid Initial Loans on or before the Fifth Amendment Commitment Increase Effective Date pursuant and, to that certain Fifth Amendment Fee Letter dated as the extent the Commitment Increase Effective Date occurs on a date other than the last day of February 8, 2017 by the Interest Period relating to any Eurocurrency Loan outstanding immediately prior to the Commitment Increase Effective Date (and among the Administrative Agent and the Borrowerbreakage costs result), shall have been paid (or shall be paid concurrently made payments required by Section 2.16 of the Credit Agreement in connection with the closing of this Amendment).Commitment Increase; and
(jf) The the Administrative Agent shall have been reimbursed for received reimbursement or payment of all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, required to be reimbursed or paid by the reasonable fees and disbursements of counsel for Company under the Administrative Agent, to the extent documented prior to Credit Agreement or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this under Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)5 hereof.
Appears in 1 contract
Sources: Incremental Commitment Agreement (Waters Corp /De/)
Conditions. This Amendment Agreement shall not become effective upon the satisfaction until each of the following conditions precedent no later than February 9, 2017 is satisfied (the date, if any, on which such conditions shall have first been satisfied being referred to herein as the “Fifth Amendment Effective Date”):
(a) This Amendment the Administrative Agent shall have been received duly executed copies of the following in form and delivered substance reasonably satisfactory to the Administrative Agent:
(i) this Agreement, executed by each Loan Partyof the parties hereto (including all of the Lenders as of the Amendment Effective Date);
(ii) that certain amendment and assignment, dated as of the date hereof, among Wilmington Trust, National Association (“WT”), BofA, Scotia and the Requisite Secured Parties (as defined in the Intercreditor Agreement), relating to the Intercreditor Agreement and the Security Agreement;
(iii) that certain amendment and assignment, dated as of the date hereof, among the Borrower, State Street as Custodian, BofA, WT, and Scotia, relating to the Control Agreement;
(iv) the Lender Fee Letter;
(v) the Agent Fee Letter;
(vi) a Federal Reserve Form for each of Scotia and State Street; and
(vii) a Beneficial Ownership Certification and a Canadian form of beneficial ownership certification from the Borrower;
(b) the Administrative Agent shall have received Uniform Commercial Code search reports relating to the Borrower from all applicable jurisdictions;
(c) the Administrative Agent shall have received proper UCC-3 financing statement amendments of the filed UCC-1 financing statements listing the Borrower as debtor and BofA as secured party that change the secured party to WT as Collateral Agent and updating the collateral description as necessary in accordance with the transactions contemplated under the documents set forth in Section 6(a), which UCC-3 financing statement amendments shall be in the form attached as Annex E hereto;
(d) the Administrative Agent shall have received a signed legal opinion from each of (i) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Borrower, and (ii) ▇▇▇▇▇▇▇ LLP, local Maryland counsel to the Borrower, in each case addressed to the Administrative Agent and the Lenders.
Secured Parties (bas defined in the Intercreditor Agreement) The as to such matters as the Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment reasonably requested in form and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes scope reasonably satisfactory to the Organization Documents of such Loan Party since August 2, 2016Administrative Agent;
(e) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Assignor Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably all respects satisfactory to the Administrative Agent, acknowledging and agreeing that certain (i) certifying as to the incumbency of authorized persons of the text shown Borrower executing this Agreement and the other documents listed in Section 6(a), (ii) certifying as unmarked text in Exhibit A to the Fourth Amendment is not, representations and has never been, effectively part warranties of the Borrower contained in Article 4 of the Credit AgreementAgreement and the other Credit Documents, despite a scrivener(iii) attaching true, complete and correct copies of the resolutions duly adopted by the governing body of the Borrower approving this Agreement and the other documents listed in Section 6(a) and the transactions contemplated hereby and thereby, all of which are in full force and effect on the date hereof, (iv) certifying that the Borrower’s error which included at least part Organization Documents have not been amended, supplemented or otherwise modified since April 7, 2017 or, if so, attaching true, complete and correct copies of each such text amendment, supplement or modification, and (v) certifying that no Default has occurred and is continuing as unmarked text in Exhibit A to of the Fourth Amendment.date hereof;
(hf) The the representations and warranties set forth in Section 4 hereof 5(a) above shall be true and correct.correct on such date in all material respects;
(ig) All each applicable Lender shall have received from the Borrower in immediately available funds, for the account of such Lender, its Upfront Fee in accordance with the Lender Fee Letter;
(h) the Administrative Agent (and its affiliates) shall have received all fees and expenses due and owing to of the Administrative Agent (and the Lenders its affiliates) due and required to be paid payable on or before prior to the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, including the reasonable fees and disbursements of counsel for to the Administrative Agent, ) and the Assignor Agent (and its affiliates) shall have received all fees and expenses of the Assignor Agent (and its affiliates) due and payable on or prior to the extent documented prior to or on Amendment Effective Date (including the date hereof (for the avoidance of doubt, a summary statement of such fees, charges reasonable fees and disbursements shall be sufficient documentation for of counsel to the obligations set forth in this Section 5(jAssignor Agent); provided that supporting documentation for such summary statement is provided promptly thereafter)and
(i) each Assignee Lender shall have made payment to the Assignor Lender on account of the applicable Lender Assigned Interests by deposit of the appropriate amount into the account specified by the Assignor Lender.
Appears in 1 contract
Conditions. This Amendment Borrower shall become effective have the option to extend the term of the Loan from the Maturity Date (for purposes of this Section, “Original Maturity Date”), to April 1, 2012 (the “First Extended Maturity Date”), upon the satisfaction of each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(ai) This Amendment Borrower shall provide Administrative Agent with written notice of Borrower’s request to exercise the First Option to Extend not more than ninety (90) days but not less than thirty (30) days prior to the Original Maturity Date; and
(ii) As of the date of Borrower’s delivery of notice of request to exercise the First Option to Extend, and as of the Original Maturity Date, no Default shall have been duly executed occurred and delivered be continuing, and no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall have occurred and be continuing, and Borrower shall so certify in writing; and
(iii) Borrower shall execute or cause the execution of all documents reasonably required by each Loan Party, the Administrative Agent to exercise the First Option to Extend (including, without limitation, an amendment to the Deed of Trust) and the Lendersshall deliver to Administrative Agent, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Administrative Agent; and
(iv) Intentionally Deleted.
(bv) There shall have occurred no material adverse change, as determined by Administrative Agent in its sole discretion, in the financial condition of Borrower, any Guarantor, or any indemnitor from that which existed as of the later of: (A) the Effective Date; or (B) the date upon which the financial condition of such party was first represented to Administrative Agent; and
(vi) On or before the Original Maturity Date, Borrower shall pay to Administrative Agent for the ratable benefit of Lenders an extension fee in the amount of TEN THOUSAND AND NO/100THS DOLLARS ($10,000.00); and
(vii) The Administrative Agent Improvements shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and be 100% complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement endorsement to the Title Policy (forms 110.5 or other form designated by a Sponsor Investor, Administrative Agent) in form and substance reasonably acceptable content satisfactory to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.; and
(fviii) The Administrative Agent As of the date of Borrower’s delivery of notice of request to exercise the First Option to Extend, the Property shall have received achieved a Constant Carried Ratio of 9.75%. “Constant Carried” means Net Operating Income for the list six (6) full calendar months immediately preceding the applicable test date, multiplied by two (2), divided by the outstanding principal amount of Restaurants to be closed or refranchised referred to in the definition of Loan. “Identified Restaurant Closures/Re-Franchisings (2017)Net Operating Income” in means the Credit Agreement Borrower’s Net Operating Income for such period as reported on Borrower’s prepared profit and loss statement, which shall be in form and substance acceptable to prepared consistent with GAAP standards. Notwithstanding that the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required management fee to be paid on or before under the Fifth Amendment Effective Date pursuant Management Agreement is equal to that certain Fifth Amendment Fee Letter dated seven percent (7%) of Gross Revenues (as defined in the Management Agreement), for purposes of February 8this definition, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or Net Operating Income shall be paid concurrently calculated using a management fee equal to five percent (5%) of such Gross Revenues; provided, however, that (1) Borrower shall not pay a management fee in excess of 5% unless Borrower is in compliance with Section 9.16 of the Loan Agreement, and (ii) the Management Agreement shall include a subordination by the manager of any fee in excess of 5% on a basis consistent with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without foregoing limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).and
Appears in 1 contract
Sources: Building Loan Agreement (Sunrise Senior Living Inc)
Conditions. This Amendment shall The Scheme will not become effective upon Effective and the satisfaction obligations of the Bidder under clause 2.4 do not become binding unless and until each of the conditions set out in the “Condition” column of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):
table has been satisfied or waived in accordance with this clause 3: CONDITION RESPONSIBILITY WAIVER (a) This Amendment shall have been duly executed (OIO approval) the Bidder has obtained all consents required under the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and delivered by each Loan Partythe Overseas Investment Regulations 2005 to the implementation of the Scheme on terms or conditions acceptable to the Bidder, acting reasonably, provided that the Bidder may not withhold its approval to the terms or conditions of any such consent if the terms or conditions imposed: (i) are the OIO Standard Terms and Conditions or are consistent in all material respects with the OIO Standard Terms and Conditions; or (ii) arise from or relate to the performance or fulfilment of, or are consistent with, the Administrative Agent and Bidder’s or any of the Lenders.
Bidder’s Related Companies’ undertakings, plans or intentions specified in writing in the Bidder’s OIO application or any subsequent written correspondence with the OIO; Bidder None (b) The Administrative Agent (HSR approval) any applicable waiting periods under the HSR Act shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions expired or other action authorizing the actions under this Amendment been terminated; Bidder and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Pushpay None (c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of (Independent Adviser) the Borrower certifying (i) Independent Adviser provides an Independent Adviser’s Report to Pushpay prior to the Scheme Meeting which concludes that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event Consideration is within or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in above the aggregate, a Material Adverse Effect.
Independent Adviser’s valuation range for the Shares; Pushpay Pushpay (d) The Administrative Agent shall have received a certificate attesting to (Shareholder approval) Shareholders approve the Solvency Scheme at the Scheme Meeting by the requisite majorities in accordance with sections 236A(2)(a) and 236A(4) of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
Companies Act; Pushpay None CONDITION RESPONSIBILITY WAIVER (e) The Administrative Agent shall have received an executed copy (Court approval) subject to clause 3.2, the Court approves the Scheme in accordance with section 236 of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
Companies Act; Pushpay None (f) The Administrative Agent shall have received (No restraint) no judgment, order, restraint or prohibition enforced or issued by any Government Agency is in effect at 8.00am on the list Implementation Date, that prohibits, prevents or materially restricts the implementation of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form Scheme; Bidder and substance acceptable to the Administrative Agent.
Pushpay Bidder and Pushpay (g) The Administrative Agent shall have received an agreeement, in form (No Prescribed Occurrence) no Prescribed Occurrence occurs between (and substance reasonably satisfactory to including) the Administrative Agent, acknowledging date of this Agreement and agreeing that certain of 8.00am on the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, Implementation Date; and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
Pushpay Bidder (h) The representations (No Material Adverse Change) no Material Adverse Change occurs, is announced or is discovered between (and warranties set forth in Section 4 hereof shall be true and correct.
(iincluding) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing date of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable Agreement and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or 8.00am on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).Implementation Date. None Bidder
Appears in 1 contract
Sources: Scheme Implementation Agreement
Conditions. This Amendment Agreement shall become be effective upon on the satisfaction first date (the “Incremental Closing Date”) on which each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):set forth in this Section 5 have been satisfied:
(a) This Amendment Agreement shall have been duly executed and delivered by each Loan Partythe Incremental Lender, the Administrative Agent Borrowers, the Guarantors and the LendersAdministrative Agent.
(b) The Administrative Agent shall have received certificates executed by received, for distribution to the Incremental Lender, a Responsible Officer certificate of the secretary or assistant secretary (or other officer reasonably acceptable to the Administrative Agent) of each Loan Party attaching Borrower dated the Incremental Closing Date, certifying (A) that (i) resolutions attached thereto is a true and complete copy of each Organizational Document (or other action authorizing its equivalent) of such Borrower certified (to the actions under this Amendment and extent applicable) as of a recent date by the Credit Agreement as amended hereby, Secretary of State of the state of its organization or (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Organizational Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as Borrower delivered to the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedon the Closing Date, and (B) that each Loan Party attached thereto is validly existinga true and complete copy of resolutions duly adopted by the Board of Managers of such Borrower establishing that all necessary organizational action on the part of such Borrower has been taken, authorizing the execution, delivery and performance of this Agreement contemplated to be entered into by such Borrower and that such resolutions and other actions have not been modified, rescinded, supplemented, or amended and are in good standing full force and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effecteffect.
(c) The Administrative Agent shall have received received, for distribution to the Incremental Lender, a certificate signed by as to the good standing of each Borrower as of a Responsible Officer recent date, from the Secretary of State of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectState of Delaware.
(d) The Administrative Agent shall have received received, for distribution to the Incremental Lender, a certificate attesting from an Authorized Officer of the Borrower Representative reasonably satisfactory to it certifying and demonstrating (a) as to the Solvency Borrowers’ Certifications in Section 7 hereof, and (b) that all of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer requirements set forth in Section 2.25 of the BorrowerCredit Agreement have been satisfied with respect to the Incremental Facility, such certificate to be accompanied by calculations shown in reasonable detail to that effect.
(e) The Administrative Agent and the Incremental Lender shall have received an executed copy received, on behalf of an agreement by themselves, the other Agents, the Lenders and the Issuing Bank, a Sponsor Investorfavorable written opinion of ▇▇▇▇▇ Day, in form and substance reasonably acceptable special counsel for the Credit Parties, (A) dated the Incremental Closing Date, (B) addressed to the Administrative AgentAgents, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds Incremental Lender, the Issuing Bank and the Borrower Lenders and (C) covering such matters relating to this Agreement and the Credit Documents as the Administrative Agent shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Datereasonably request.
(f) The Administrative Agent shall have received payment of (i) all fees due to it and the list Incremental Lender, as separately agreed, (ii) reimbursement or payment of Restaurants all reasonable and documented out-of-pocket expenses of the Incremental Lender incurred in connection with the entry into of this Agreement (which includes the reasonable and documented legal fees and expenses of counsel to the Incremental Lender) and (iii) all amounts due and payable under Section 10.2 of the Credit Agreement, including, reimbursement or payment of all out-of-pocket expenses that are specifically required to be closed or refranchised referred to in paid on the definition Incremental Closing Date (which includes the reasonable and documented legal fees and expenses of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable counsel to the Administrative Agent and the Collateral Agent), in each case, to the extent invoiced at least two (2) Business Days prior to the Incremental Closing Date.
(g) Solely to the extent specifically requested by the Incremental Lender at least three (3) Business Days prior to the Incremental Closing Date, the Incremental Lender shall have received at least one (1) Business Day prior to the Incremental Closing Date all documentation and other information required under Anti-Terrorism Laws and applicable “know-your-customer” and anti-money laundering Laws, including a Beneficial Ownership Certification.
(h) The Administrative Agent shall have received an agreeementreceived, in form and substance reasonably satisfactory for distribution to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubtIncremental Lender, a summary statement of such feesSolvency Certificate duly executed and delivered by Parent, charges and disbursements shall be sufficient documentation for substantially in the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).form attached hereto as Exhibit A.
Appears in 1 contract
Conditions. This Amendment shall become effective upon Upon the satisfaction or waiver of each of the following conditions precedent no later than February 9conditions, 2017 this Agreement shall be deemed to be effective (the date of such satisfaction, the “Fifth Amendment Restatement Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates counterparts of this Agreement executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that and each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.Credit Party;
(cb) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy signature page to this Agreement or written authorization directing the Administrative Agent to execute this Agreement on its behalf from Lenders that constitute Required Lenders (as defined in the Existing Credit Agreement), all of the Lenders identified on Annex C hereto having an agreement Initial Revolving-2 Loan Commitment and all of the Lenders identified on Annex D hereto;
(c) the Administrative Agent shall have received executed counterparts of the other Loan Documents (including, without limitation, the Restated Collateral Agreement, the Restated Subsidiary Guaranty and a Note in favor of each Lender who has requested a Note at least three (3) Business Days prior to the Restatement Effective Date), in each case, each executed by an Authorized Signatory of the signing Credit Party;
(d) the Borrower shall deliver or cause to be delivered (i) a Sponsor Investorcertificate, in form and substance reasonably acceptable satisfactory to the Administrative AgentAgent and executed by the chief financial officer of the Borrower certifying that after giving effect to the making of any extension of credit on the Restatement Effective Date pursuant to this Agreement (including the Restated Credit Agreement) or any of the other Transactions, the Borrower and its Subsidiaries (on a consolidated basis) will be solvent (as determined in accordance with Section 4.1(w) of the Restated Credit Agreement) and (ii) one or more certificates, each in form and substance satisfactory to purchase Qualified Securities the Administrative Agent and executed by an Authorized Signatory of each applicable Credit Party (including, without limitation, an incumbency certification with respect to each Authorized Signatory to this Agreement), certifying that attached thereto are true, complete and correct copies of (A) the resolutions of the Borrower and each Subsidiary Guarantor authorizing the execution, delivery and performance of this Agreement (including the Restated Credit Agreement) and the Loan Documents to which it is a party and each of the transactions contemplated hereby or thereby and (B) the articles or certificates of formation or incorporation (or the equivalent) and the bylaws or operating agreements (or the equivalent) of the Borrower and each Subsidiary Guarantor (and, which in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds case of such issuance articles or certificates of formation or incorporation (or the equivalent) shall be certified by the Secretary of State (or similar state official) for the state of incorporation, organization or formation of such Credit Party as of a date that is no later earlier than thirty (30) days prior to the Fifth Amendment Restatement Effective Date.Date (or such earlier date as the Administrative Agent may determine in its sole discretion)) and (C) a certificate of good standing for each Credit Party issued by the Secretary of State (or similar state official) for the state of incorporation, organization or formation of such Credit Party as of a date that is no earlier than thirty (30) days prior to the Restatement Effective Date (or such earlier date as the Administrative Agent may determine in its sole discretion);
(fe) The the Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementfollowing, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.:
(i) All fees legal opinions of (A) ▇▇▇▇▇ Day, corporate counsel to the Borrower and expenses due its Restricted Subsidiaries, (B) FCC counsel to the Borrower and owing its Subsidiaries and (C) such other legal opinions as may be reasonably requested by the Administrative Agent (which, in each case, shall be dated as of the Restatement Effective Date, addressed to the Lenders and the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as include customary reliance by successors and/or assigns of February 8, 2017 by and among the Administrative Agent and each Lender);
(ii) Uniform Commercial Code Lien, judgment and other applicable searches with respect to each Credit Party, as requested by the BorrowerAdministrative Agent;
(iii) evidence that all Necessary Authorizations relating to the execution, shall delivery and performance of this Agreement (including the Restated Credit Agreement) and any other documents in connection therewith and the consummation of the transactions contemplated hereby and thereby have been paid obtained or made and are in full force and effect;
(or shall be paid concurrently iv) true and complete copies of:
(A) the audited consolidated balance sheets of each of (1) the Borrower and its Subsidiaries in each case as of December 31, 2018, December 31, 2019 and December 31, 2020 and each subsequent fiscal year ending at least ninety (90) days prior to the Restatement Effective Date and (2) the Project Matrix Targets in each case as of June 30, 2020 and June 30, 2021 and each subsequent fiscal year ending at least sixty (60) days prior to the Restatement Effective Date, together in each case of clauses (1) and (2) with the closing related audited consolidated statements of this Amendmentincome or operations, stockholders’ equity and cash flows for each such fiscal year, together with the notes thereto, and in each case under clause (2) prepared on a carve-out basis that eliminates the results of operations, assets and liabilities of SpinCo (as defined in the Project Matrix Merger Agreement)., the other SpinCo Entities (as defined in the Project Matrix Merger Agreement) and their Subsidiaries (as defined in the Project Matrix Merger Agreement);
(jB) The Administrative Agent shall have been reimbursed the unaudited consolidated balance sheets of the Borrower and its Subsidiaries as of the last day of each fiscal quarter (other than the last quarter of any fiscal year) ended March 31, 2021 and June 30, 2021, together with the related unaudited consolidated statements of operations for all reasonable each such fiscal quarter and documented fees in each case of such statements of operations, including results for the fiscal year to date and outcomparisons to the corresponding fiscal year to date periods in each of the prior two fiscal years; and
(C) any other financial statements, financial reports or other financial information received pursuant to the Project Matrix Merger Agreement by any Credit Party with respect to the Project Matrix Targets; in each case of (A) and (B), prepared in accordance with GAAP subject, in the case of interim financial statements, to normal year-ofend audit adjustments and the appropriate absence of footnotes, and using the same accounting principles, policies, methods, practices, procedures, classifications, categories, estimates, judgments and assumptions as were used in preparing the financial statements set forth in clause (iv)(A) above;
(v) pro forma consolidated balance sheets and related pro forma consolidated statements of operations of the Borrower and a reconciliation from net income to Operating Cash Flow for the two fiscal years most recently ended for which audited financial statements are provided and for the eight-pocket charges and quarter period ending on the last day of the most recent fiscal quarter (other expenses incurred than the last quarter of any fiscal year) ending at least forty-five (45) days before the Restatement Effective Date, in each case, prepared after giving pro forma effect to each element of the Transactions (including any required divestitures in connection with this Amendmentthe Project Matrix Acquisition) and any previously announced acquisition and the other transactions related thereto in accordance with Regulation S-X under the Securities Act of 1933, as amended and including other adjustments reasonably acceptable to the Lead Arrangers, as if the Transactions and any such previously announced acquisition or related transactions had occurred on the last day of such eight quarter period (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements);
(vi) projections prepared by management of the Borrower and its Subsidiaries for the term of the Term D Loan (and in a form substantially consistent with the projections provided to the Lead Arrangers prior to June 2, 2021 or such other form as is reasonably satisfactory to the Lead Arrangers);
(vii) (A) a Beneficial Ownership Certification with respect to each Credit Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and (B) all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case that has been requested at least ten (10) Business Days prior to the Restatement Effective Date;
(viii) UCC financing statements in proper form for filing for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the assets of the Project Matrix Targets;
(ix) all certificates evidencing any certificated Capital Stock pledged to the Administrative Agent pursuant to the Collateral Agreement, together with duly executed blank and undated stock powers attached thereto; and
(x) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect or evidence the Liens created under the Security Documents in the assets of the Project Matrix Targets has been taken;
(f) the Borrower shall have paid (A) to the Administrative Agent and ▇▇▇▇▇ Fargo Securities, LLC for the account of themselves, the other Lead Arrangers and the Lenders, as applicable, all of the respective fees due to them on the Restatement Effective Date and any other accrued and unpaid fees or commissions due on the Restatement Effective Date, (B) all of the reasonable out-of-pocket fees and expenses of the Administrative Agent, the Lead Arrangers and their respective affiliates to the extent invoiced at least three (3) Business Days prior to the Restatement Effective Date (or as otherwise set forth in a funds flow approved by the Borrower), including without limitation, all reasonable and invoiced fees, charges and disbursements of counsel for (or directly to such counsel if requested by the Administrative Agent, ) to the extent documented accrued and unpaid prior to or on the date hereof (for the avoidance of doubtRestatement Effective Date, a summary statement plus such estimate of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be sufficient documentation for incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent) and (C) to any other Person such amount as may be due thereto on the Restatement Effective Date in connection with the transactions contemplated hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any document in connection with this Agreement;
(g) the Administrative Agent and the Lead Arrangers shall have received evidence that (i) all of the existing Indebtedness of the Project Matrix Targets (other than Indebtedness permitted under Section 7.1 of the Restated Credit Agreement) has been, or substantially concurrently with the funding of the initial extensions of credit to be made on the Restatement Effective Date is being, fully repaid and all commitments thereunder shall have been terminated or cancelled (including receipt of customary payoff letters and release agreements with respect thereto) and all Liens securing obligations set forth under each agreement or document governing such Indebtedness have been, or substantially concurrently with the funding of the initial extensions of credit on the Restatement Effective Date are being, released and (ii) on the Restatement Effective Date, immediately after giving effect to the Transactions, the Project Matrix Targets shall have no outstanding Indebtedness (other than the Obligations and Indebtedness permitted pursuant to Section 7.1 of the Restated Credit Agreement and the Project Matrix Merger Agreement or as agreed between the Borrower and the Lead Arrangers);
(h) since May 3, 2021, there have not been any events, changes or occurrences or states of facts, that individually or in this Section 5(jthe aggregate, have had a Company Material Adverse Effect (as defined in the Project Matrix Merger Agreement);
(i) the Project Matrix Acquisition and the other Transactions shall have been consummated substantially concurrently with the funding of the Term D Loan on the Restatement Effective Date, in each case in accordance with applicable law and in all material respects in accordance with the Project Matrix Merger Agreement, without giving effect to any amendments, waivers, modifications or consents thereunder that are materially adverse to the Lenders or the Lead Arrangers unless such amendments, waivers, modifications or consents are approved in writing by the Lead Arrangers (such approval not to be unreasonably withheld or delayed); provided that supporting documentation (i) any increase in the purchase price for the Project Matrix Acquisition shall be deemed to be not materially adverse to the Lenders so long as such summary statement increase in not funded with additional indebtedness or additional preferred stock, (ii) any reduction in the purchase price for the Project Matrix Acquisition of less than ten percent (10%) shall be deemed to be not materially adverse to the Lenders so long as such reduction of the total purchase price for the Project Matrix Acquisition is applied to reduce the Indebtedness financing the Project Matrix Acquisition on a dollar-for-dollar basis in a manner reasonably satisfactory to the Lead Arrangers and (iii) any amendment, waiver or other modification of (A) any of the definitions of “Company Material Adverse Effect”, “RemainCo Required Financial Information”, “End Date” or “Marketing Period”, in each case as set forth in the Project Matrix Merger Agreement, (B) Section 2.3 of the Project Matrix Merger Agreement or (C) the third party beneficiary rights and related provisions of the Project Matrix Merger Agreement applicable to the Lead Arrangers or the Lenders (or any of them), shall, in each case, be deemed to be materially adverse to the interests of the Lenders or the Lead Arrangers;
(j) the Distribution (as defined in the Project Matrix Merger Agreement) and the other transactions related to the spin off of the SpinCo (as defined in the Project Matrix Merger Agreement) shall be consummated substantially concurrently with the funding of the Term D Loan on the Restatement Effective Date in accordance with applicable law and in all material respects in accordance with the terms of the Project Matrix Agreements, without giving effect to any amendments, waivers, modifications or consents thereunder that are materially adverse to the interests of the Lenders or the Lead Arrangers unless approved in writing by the Lead Arrangers, such approval not to be unreasonably withheld or delayed; provided promptly thereafterthat any reduction in the SpinCo Cash Payment (as such term is defined in the Project Matrix Separation and Distribution Agreement), other than in accordance with the terms of the Project Matrix Separation and Distribution Agreement (including, without limitation, Section 2.2 thereof), shall be deemed to be materially adverse to the Lenders or the Lead Arrangers.
(k) each of the representations and warranties made by the sellers identified in the Project Matrix Merger Agreement, any Project Matrix Targets or any of their respective Subsidiaries or Affiliates or with respect to any Project Matrix Targets or their respective Subsidiaries or their respective businesses in the Project Matrix Merger Agreement that are material to the interests of the Lenders are true and correct, but only to the extent that the Borrower or its Affiliates have the right to terminate their respective obligations under the Project Matrix Merger Agreement or otherwise decline to close the Project Matrix Acquisition as a result of a breach of any such representations or warranties or as a result of any such representations or warranties not being accurate (in each case determined with regard to any notice requirement);
(l) each of the representations and warranties set forth in each of the following Sections of
Appears in 1 contract
Conditions. This The effectiveness of this Amendment Agreement, and any ---------- consent or waiver contained herein, shall become effective upon the satisfaction be subject to fulfillment of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This The Agent shall have received on the date hereof, in form and substance satisfactory to the Agent, the following:
(i) a fully-executed original of this Amendment Agreement;
(ii) an executed amendment, consent and waiver to the Existing Aviation Sales Credit Agreement (the "Citicorp Amendment") in the form of Exhibit B attached hereto; and all conditions to the effectiveness --------- of such waiver and forbearance extension shall have been satisfied;
(iii) an executed original of the Fifth Modification to the Memorandum of Lease in the form of Exhibit A attached hereto; ---------
(iv) evidence of the payment of all fees and amounts set forth in Exhibit D attached hereto; ---------
(v) an opinion of outside counsel to the Lessee and the Guarantors, addressed to the Agent, the Owner Trustee and the Lenders and Holders, including without limitation (A) an opinion of such counsel with respect to noncontravention of the Citicorp Loan Documents and agreements under which the Senior Subordinated Notes have been issued, by this Consent Agreement, and the instruments and documents executed by the Lessee, Construction Agent and Guarantors in connection herewith, and (b) an opinion to the effect that the execution, delivery and performance of this Consent Agreement will not affect the priority of any Lien in favor of the Owner Trustee or the Agent (on behalf of itself, any Lender or any Holder) that exists under the Operative Agreements (which opinion may be included in the opinion referred to in clause (v)(A) above);
(vi) a certificate of the Secretary or an Assistant Secretary of each of the Lessee and each Guarantor in such form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of the Board of Directors of Lessee or such Guarantor (as the case may be) duly executed authorizing the execution, delivery and performance by Lessee or such Guarantor (as the case may be) of this Consent Agreement and each of the other Operative Agreements delivered in connection with this Consent Agreement to which such Lessee or Guarantor is or will be a party, (B) the fact that neither its certificate of incorporation nor its bylaws have been changed from the versions that were certified and delivered to the Agent on the Initial Closing Date (or if they have been changed, such certificate of incorporation or by-laws certified as of a recent date by the Secretary of State of the State of its incorporation), and (C) the incumbency and signature of persons authorized to execute and deliver on its behalf this Consent Agreement and each Loan Partyof the other Operative Agreements delivered in connection with this Consent Agreement to which such Lessee or Guarantor is a party;
(vii) payment in full of all Basic Rent and Supplemental Rent (including without limitation the Basic Rent that was due on October 17, 2001) due and owing in accordance with the Administrative Agent and terms of the Lenders.Lease Agreement; and
(viii) any additional agreements, instruments or documents which it may reasonably request in connection herewith;
(b) The Administrative Agent shall have received certificates executed by With respect to the waiver described in Section 2(j) above, such ------------ waiver is conditioned upon a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies copy of the Organization Documents subject management letter being delivered to the Agent promptly upon Aviation Sales's or any of its Subsidiaries' receipt of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.management letter from Aviation Sales's accountants;
(c) The Administrative Within ninety (90) days after the date hereof, the Agent shall have received a certificate signed by a Responsible Officer obtain (at Lessee's sole expense) an Appraisal of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.Property;
(d) The Administrative Agent shall have received a certificate attesting to the Solvency correctness in all material respects of the Loan Parties on a consolidated basis before representations and after giving effect to this Amendment, from the chief financial officer warranties of the Borrower.Owner Trustee, Construction Agent and the Lessee contained herein and in each of the Operative Agreements;
(e) The Administrative Agent No material adverse change shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities occurred in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds business, assets, management, operations, financial condition or prospects of such issuance no later than the Fifth Amendment Effective Date.Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales since December 31, 2000;
(f) The Administrative Agent Except as described in Amendment Nos. 7-10 and amendment nos. 4-7 to the Existing Aviation Sales Credit Agreement or in this Consent Agreement or the Citicorp Waiver, since December 31, 2000, no permit, agreement, lease, or license which, in the judgment of the Agent, is material to the business, operations or employee relations of Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales, including without limitation, any agreement relating to the Existing Aviation Sales Credit Agreement or the Senior Subordinated Notes (as defined in the Existing Aviation Sales Credit Agreement), shall have received the list of Restaurants been terminated, modified, revoked, breached, or declared to be closed in default, or refranchised referred if breached or declared to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable default during such period, such breach or default shall have been cured or waived on terms satisfactory to the Administrative Agent.Agent and Lenders;
(g) The Administrative Agent Lenders and Holders shall have received an agreeementreviewed all litigation pending or threatened against Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales and determined to their satisfaction that no Material Adverse Effect will, in form and substance or is reasonably satisfactory to likely to, result from the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.existence thereof; and
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to None of the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated members of Aviation Sales' Board of Directors as of February 8December 31, 2017 by 2000 (except ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and among the Administrative Agent and the Borrower▇▇▇▇▇▇ ▇▇▇▇▇▇), shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement ceased acting as members of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Board of Directors.
Appears in 1 contract
Sources: Lease Agreement (Aviation Sales Co)
Conditions. This Amendment shall become effective upon as of the satisfaction first date on which each of the following conditions precedent no later than February 9, 2017 is satisfied (the “Fifth Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by from each of the Borrower, the Agent and each Lender (including each institution that will be a Responsible Officer of each Loan Party attaching Lender after giving effect to the amendments set forth herein) either (i) resolutions or other action authorizing the actions under a counterpart of this Amendment and the Credit Agreement as amended hereby, signed on behalf of such party or (ii) incumbency certificates, evidence satisfactory to the Agent (iiiwhich may include a facsimile or electronic transmission) certified copies that such party has signed a counterpart of this Amendment; (b) the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there Agent shall have been no changes to the Organization Documents of received such Loan Party since August 2, 2016) and (iv) such other documents and certifications certificates as the Administrative Agent may reasonably require request relating to evidence that each Loan Party is duly organized or formedthe existence of the Borrower, the corporate authority for and validity of this Amendment, and that each Loan Party is validly existingany other matters relevant hereto, all in good standing form and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except substance reasonably satisfactory to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Agent; (c) The Administrative the Agent shall have received a certificate signed by a Responsible the Chief Financial Officer or the Vice President, Finance of the Borrower certifying Borrower, dated the Amendment Effective Date, to the effect that (i) that no Default has occurred and is continuing as of the conditions specified in this Section Amendment Effective 5 have been satisfied, Date and (ii) that there has been no event or circumstance since December 29the representations and warranties of the Borrower set forth in Article IV of the Credit Agreement (as amended hereby and adjusted as provided in Section 3 above) are true in all material respects on, 2015 that has had or could be reasonably expected to haveand as of, either individually or in the aggregate, a Material Adverse Effect.
Amendment Effective Date; (d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy opinion of an agreement by a Sponsor Investoreach of (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, Esq., counsel to the Borrower, (ii) ▇▇▇▇▇ ▇▇▇▇ &Wardwell LLP, special counsel to the Borrower, and (iii) Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, Pennsylvania counsel to the Borrower, in form each case given upon the Borrower’s express instructions substantially in the forms of Exhibits E-1, E-2 and substance reasonably acceptable E-3, respectively, to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
Credit Agreement; (fe) The Administrative Agent shall have received for the list accounts of Restaurants the Lenders all interest, fees and other amounts accrued to be closed or refranchised referred to in owing as of the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in Amendment Effective Date under the Credit Agreement which shall be in form Agreement, whether or not at the time due and substance acceptable to payable; (f) the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain reimbursement or payment of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges expenses required to be reimbursed or paid by the Borrower under the Credit Agreement or under Section 5 hereof; and other expenses incurred (g) The Borrower shall have paid all fees payable by it in connection with this Amendment. The Agent shall promptly notify the Borrower and the Lenders of the Amendment Effective Date, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements notice shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)conclusive and binding on all parties hereto.
Appears in 1 contract
Sources: Credit Agreement
Conditions. This Amendment The consummation of the transactions set forth in Sections 3 and 4 of this Agreement shall become effective upon be subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed received from each of Holdings, the Borrower and delivered by each Loan Party, the Restatement Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent and the Lenders(which may include facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each Loan Party attaching of (i) resolutions or other action authorizing Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the actions under this Amendment and Borrower, substantially in the Credit Agreement as amended herebyform of Exhibit ▇-▇, (ii) incumbency certificates▇▇▇▇ ▇▇▇▇▇▇▇▇▇ P.L.C., Arizona local counsel for the Borrower, substantially in the form of Exhibit B-2, and (iii) certified copies ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Rhode Island local counsel for the Borrower, substantially in the form of the Organization Documents of such Loan PartyExhibit B-3, and, in the case of each casesuch opinion required by this paragraph, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes covering such other matters relating to the Organization Loan Parties, the Loan Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications or the Restatement Transactions as the Administrative Agent may Restatement Lenders shall reasonably require request. The Borrower hereby requests such counsel to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires deliver such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectopinions.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Borrower certifying (i) that Restatement Transactions and any other customary legal matters relating to the conditions specified Loan Parties, the Loan Documents or the Restatement Transactions, all in this Section 5 have been satisfied, form and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be substance reasonably expected satisfactory to have, either individually or in the aggregate, a Material Adverse EffectAdministrative Agent and its counsel.
(d) The Each of the conditions set forth in Section 4.02 of the Restated Credit Agreement shall be satisfied, and the Administrative Agent shall have received a certificate attesting to certificate, dated the Solvency of Restatement Effective Date and signed by the Loan Parties on President, a consolidated basis before and after giving effect to this Amendment, from the chief financial officer Vice President or a Financial Officer of the Borrower, confirming satisfaction of the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, all fees and other amounts due and payable in form connection with this Agreement and substance reasonably acceptable the Existing Credit Agreement on or prior to the Administrative AgentRestatement Effective Date, including, to purchase Qualified Securities the extent invoiced in writing at least two Business Days prior to the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Restatement Effective Date, reimbursement or payment of all reasonable documented out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall be satisfied after giving effect to the Restatement Transactions, and in connection therewith the Administrative Agent shall have received (i) a completed Perfection Certificate with respect to the list Loan Parties (including the Subsidiaries party to the Reaffirmation Agreement) dated the Restatement Effective Date and signed by an executive officer or Financial Officer of Restaurants the Borrower, together with all attachments contemplated thereby, (ii) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to be closed or refranchised referred the Loan Parties (including the Subsidiaries party to the Reaffirmation Agreement) in the definition jurisdictions contemplated by the Perfection Certificate and the copies of “Identified Restaurant Closures/Re-Franchisings the financing statements (2017)” in the Credit Agreement which shall be in form or similar documents) disclosed by such research and substance acceptable evidence reasonably satisfactory to the Administrative AgentAgent that the Liens indicated by such financing statements (or similar documents) are expressly permitted by the Restated Credit Agreement, (iii) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Agreement and the Pledge Agreement (including any supplements thereto), after giving effect to the Restatement Transactions, and perfect such Liens to the extent required by, and with the priority required by, the Security Agreement and the Pledge Agreement and (iv) (A) amendments to each Mortgage with respect to each Mortgaged Property and each Restatement Mortgaged Property providing that the Tranche G Term Loans (in addition to the other Obligations) shall be secured by a Lien on each such Mortgaged Property and Restatement Mortgaged Property, as the case may be, (B) endorsements to existing policy or policies of title insurance issued by a nationally recognized title insurance company, insuring the Lien of each such Mortgage as amended so remains a valid first Lien on the Mortgaged Property or Restatement Mortgaged Property, as the case may be, described therein, free of any other Liens except as expressly permitted by Section 6.02 of the Restated Credit Agreement, together with such endorsements, coinsurance and reinsurance as the Collateral Agent or the Restatement Lenders may reasonably request and (C) such surveys, abstracts, appraisals, legal opinions and other documents as the Collateral Agent or the Restatement Lenders may reasonably request with respect to any such Mortgage or Mortgaged Property or Restatement Mortgaged Property, as the case may be.
(g) The Administrative Agent A Reaffirmation Agreement substantially in the form of Exhibit C hereto shall have received an agreeement, in form been executed and substance delivered by each party thereto.
(h) Holdings and the Borrower shall have entered into supplemental indentures to each of the First Lien Note Indenture and the Second Lien Note Indenture reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A each case to the Fourth Amendment is not, and has never been, effectively part of extent necessary in order to permit the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correctRestatement Transactions.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for be reasonably satisfied that (i) the Borrower has, on and as of the Restatement Effective Date, an aggregate amount of cash sufficient to pay all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendmentthe Restatement Transactions, includingincluding all tender premiums, without limitationfees and expenses in connection with the purchase of First Lien Notes and Second Lien Notes pursuant to the Tenders, and (ii) the aggregate amount of such fees and expenses shall not exceed $90,000,000. The aggregate amount of such cash held by the Borrower on and as of the Restatement Effective Date shall, together with the proceeds of the Tranche G Term Loans, be sufficient to consummate the Tenders with respect to $130,000,000 aggregate principal amount of First Lien Notes and $195,000,000 aggregate principal amount of Second Lien Notes, to prepay the Tranche F Term Loans and to pay all fees and expenses payable in connection with the Restatement Transactions. The Administrative Agent shall notify the Borrower and the Restatement Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the reasonable fees and disbursements consummation of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations transactions set forth in Sections 3 and 4 of this Section 5(j); Agreement and the obligations of the Tranche G Lenders to make Tranche G Term Loans and the Revolving Commitments of the Revolving Lenders provided that supporting documentation for herein shall not become effective unless each of the foregoing conditions is satisfied at or prior to 5:00 p.m., New York City time, on December 23, 2004 (and, in the event such summary statement is provided promptly thereafterconditions are not so satisfied or waived, this Agreement shall terminate at such time).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (On Semiconductor Corp)
Conditions. This Amendment The obligations of the Tack-on Lenders to fund the Tack-on Loans hereunder shall not become effective upon until the satisfaction date on which each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):is satisfied:
(a) This Amendment The Administrative Agent shall have been duly received from the Borrower, no later than one day prior to the Amendment No. 1 Effective Date, a fully executed and delivered by each Loan Party, Funding Notice with respect to the Administrative Agent and borrowing of the LendersTack-on Loans.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer favorable written opinion (addressed to the Administrative Agent and the Lenders and dated as of each Loan Party attaching the Amendment No. 1 Effective Date) of (i) resolutions or other action authorizing ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, internal counsel for the actions under this Amendment Borrower and its Subsidiaries in form and substance reasonably satisfactory to the Credit Agreement as amended herebyAdministrative Agent and substantially in the form of Exhibit A-1 hereto, (ii) incumbency certificates▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower and its Subsidiaries in form and substance reasonably satisfactory to the Administrative Agent and substantially in the form of Exhibit A-2 hereto, (iii) certified copies of ▇▇▇▇▇▇▇, Bermuda counsel for the Organization Documents of such Loan PartyBorrower and its Subsidiaries, in each case, certified as true, accurate form and complete and in effect on the date hereof (or a certification that there shall have been no changes substance reasonably satisfactory to the Organization Documents Administrative Agent and substantially in the form of such Loan Party since August 2Exhibit A-3 hereto, 2016) and (iv) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, UK counsel for the Borrower and its Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent and substantially in the form of Exhibit A-4 hereto, (v) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Borrower and it Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent and substantially in the form of Exhibit A-5 hereto, (vi) Houthoff Buruma N.V., Netherlands counsel for the Borrower and its Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent and substantially in the form of Exhibit A-6 hereto, (vii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ S.C., Wisconsin, Iowa and Michigan counsel to the Borrower and its Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent and substantially in the form of Exhibit A-7 hereto and (viii) ▇▇▇▇▇▇▇, Mauritius counsel to STT, in form and substance reasonably satisfactory to the Administrative Agent and substantially in the form of Exhibit A-8 hereto, and in the case of each such opinion required by this paragraph, covering such other documents and certifications matters relating to the Credit Parties, the Credit Documents or the Transactions as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably require request relating to evidence that each Loan Party is duly organized or formedthe organization, existence and that each Loan Party is validly existing, in good standing of each Credit Party, the authorization of this Amendment and qualified any other legal matters relating to engage in business in each jurisdiction where its ownershipCredit Parties, lease or operation of properties the Credit Documents or the conduct Transactions, 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 No. 1 Effective Date and signed by an Authorized Officer of its business requires such qualificationthe Borrower, except confirming (x) that the representations and warranties set forth in Section 18 hereof are true and correct in all material respects and (y) compliance with the conditions set forth in paragraphs (a) and (b) of Section 3.2 of the Credit Agreement prior to and immediately after giving effect to the Transactions.
(e) The Administrative Agent shall have received all fees and other amounts due and payable by the Borrower or any other Credit Party to the Administrative Agent on or prior to the Amendment No. 1 Effective Date (including, to the extent invoiced and without limitation, (i) any out-of-pocket expenses of the Administrative Agent referenced in Section 24 below and (ii) all reasonable invoiced fees, charges and disbursements of Cravath, Swaine & ▇▇▇▇▇ LLP, White & Case LLP and ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, each counsel to the Administrative Agent).
(f) A Reaffirmation Agreement substantially in the form of Exhibit B hereto (the “Reaffirmation Agreement”) shall have been executed and delivered by each party thereto.
(g) The Administrative Agent shall have received the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Credit Parties and, if requested by the Administrative Agent, copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that failure the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.2 of the Credit Agreement or have been or will contemporaneously with the funding of the Tack-on Loans on the Amendment No. 1 Effective Date be released.
(h) The Lenders shall have received detailed projections of the Borrower and its Subsidiaries, reasonably satisfactory to do so the Administrative Agent.
(i) After giving effect to the Transactions, none of the Borrower or any Guarantor Subsidiary shall have any outstanding Indebtedness or preferred stock other than (i) the Loans and (ii) other Indebtedness and preferred stock permitted under the Credit Agreement (as amended by this Amendment).
(j) There shall not exist any action, suit, investigation, litigation, proceeding, hearing or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of Administrative Agent and Syndication Agent, singly or in the aggregate, materially impairs the Transactions, or that could not reasonably be expected to have a Material Adverse Effect.
(ck) The On the Amendment No. 1 Effective Date, the Administrative Agent and Syndication Agent shall have received a certificate signed by a Responsible Officer of the Solvency Certificate from Borrower certifying (i) that the conditions specified in this Section 5 have been satisfiedform, scope and substance satisfactory to Administrative Agent and Syndication Agent, and (ii) demonstrating that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendmentthe Tack-on Loans, from the chief financial officer application of the Borrowerproceeds thereof and any rights of contribution, each of Borrower and its Subsidiaries is and will be Solvent.
(el) The Administrative Agent Borrower and each Required Closing Date Guarantor shall have received an executed copy obtained all Governmental Authorizations, all Communication Regulatory Authority consents and approvals and all consents of an agreement by a Sponsor Investorother Persons, in form and substance reasonably acceptable to each case that are necessary or advisable in connection with the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in transactions contemplated by the Credit Agreement which Documents and each of the foregoing shall be in form full force and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, effect and in form and substance reasonably satisfactory to Administrative Agent and Syndication Agent; provided, that the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A failure to the Fourth Amendment is not, and has never been, effectively part obtain any state regulatory approval set forth on Schedule 3.1(g) of the Credit AgreementAgreement for the entire amount of the Obligations (after Borrower’s and such Subsidiary’s use of reasonable efforts to obtain such approvals) shall not constitute a failure to meet the requirements of this Section 19(l). All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, despite a scrivener’s error which included at least part prevent or otherwise impose adverse conditions on the Transactions and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof foregoing shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent pending, and the Lenders and required time for any applicable agency to be paid take action to set aside its consent on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, its own motion shall have been paid (or shall be paid concurrently with the closing of this Amendment)expired.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Global Crossing LTD)
Conditions. This Amendment The obligations of the Lenders to make Loans hereunder shall not become effective upon until the satisfaction date on which each of the following conditions precedent no later than February 9, 2017 is satisfied (the “Fifth Amendment Effective Date”or waived in accordance with Section 10.2):
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Party, the Administrative Agent and the Lendersparty hereto a counterpart of this Agreement signed on behalf of such party.
(b) The Lenders and the Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions all fees required to be paid on or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes prior to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectClosing Date.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer reasonably satisfactory written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of Mayer, Brown, R▇▇▇ & Maw LLP, special New York counsel for the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfiedCredit Parties, and (ii) that there has been no event or circumstance since December 29B▇▇▇▇ ▇▇▇▇ LLP, 2015 that has had or could be reasonably expected to havespecial counsel for the Credit Parties, either individually or substantially in the aggregateforms of Exhibit B-1 and B-2, a Material Adverse Effectrespectively, and covering such other matters relating to the Credit Parties, this Agreement or the Transactions as the Required Lenders shall reasonably request. The Credit Parties hereby request such counsel to deliver such opinion.
(d) The Administrative Agent shall have received a certificate attesting such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the Solvency organization, existence and good standing of the Loan Parties on a consolidated basis before and after giving effect to this AmendmentCredit Parties, from the chief financial officer authorization of the BorrowerTransactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received an executed copy a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of an agreement by a Sponsor Investoreach Credit Party, confirming compliance with the conditions set forth in form paragraphs (h) and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds (i) of such issuance no later than the Fifth Amendment Effective Datethis Article IV.
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the list Closing Date, including, to the extent invoiced, reimbursement or payment of Restaurants all out-of-pocket expenses required to be closed reimbursed or refranchised referred to in paid by the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative AgentBorrower hereunder.
(g) The Administrative Agent All governmental and material third party approvals necessary in connection with the execution, delivery and performance of this Agreement shall have received an agreeement, been obtained and be in form full force and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendmenteffect.
(h) The representations and warranties of the Credit Parties set forth in Section 4 hereof Article III of this Agreement shall be true and correctcorrect in all material respects on and as of the Closing Date.
(i) All fees At the time of and expenses due and owing immediately after giving effect to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8Borrowing, 2017 by and among the Administrative Agent and the Borrower, no Default shall have been paid (or shall occurred and be paid concurrently with the closing of this Amendment).
(j) continuing. The Administrative Agent shall have been reimbursed for all reasonable notify the Borrower and documented fees the Lenders of the Closing Date, and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements notice shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)conclusive and binding.
Appears in 1 contract
Sources: Bridge Credit and Guarantee Agreement (H&r Block Inc)
Conditions. This Amendment shall become effective upon The effectiveness of this Agreement and the obligation of each Lender to make a Loan on the occasion of any Borrowing (exclusive of continuations and conversions of a Borrowing), is subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Party, party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent and the Lenders(which may include fax or email pdf transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching written opinions (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes addressed to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedand the Lenders and dated the Effective Date) of T. ▇▇▇▇ ▇▇▇▇▇▇, General Counsel of the Borrower, and that each Loan Party is validly existing▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower, in good standing form and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except substance reasonably satisfactory to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectAdministrative Agent.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of such documents and certificates as the Borrower certifying Administrative Agent or its counsel may reasonably request relating to (i) that the conditions specified in this Section 5 have been satisfiedorganization and existence of the Borrower, and (ii) that there has been no event the authorization of the Transactions and any other legal matters relating to the Borrower, this Agreement or circumstance since December 29the Transactions, 2015 that has had or could be all in form and substance reasonably expected satisfactory to have, either individually or in the aggregate, a Material Adverse EffectAdministrative Agent and its counsel.
(d) The Administrative Agent Each Lender shall have received a certificate attesting to (i) the Solvency audited financial statements for the Borrower and its Subsidiaries for the four-fiscal quarter period ended December 31, 2024 and (ii) the unaudited financial statements for the Borrower and its Subsidiaries for the fiscal quarter ending June 30, 2025 (each of which conditions in the Loan Parties on a consolidated basis before foregoing sub-clauses (i) and after giving effect to this Amendment, from (ii) the chief financial officer of Lenders acknowledge has occurred by the Borrower’s public filing of such financial statements with the Securities and Exchange Commission).
(e) The Administrative Agent shall have received an executed copy of an agreement each promissory note requested by a Sponsor InvestorLender pursuant to Section 2.10(e), in form each duly completed and substance reasonably acceptable to executed by the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective DateBorrower.
(f) The Administrative Agent shall have received a certificate or certificates, dated the list Effective Date and signed by the President, an Executive Vice President or a Financial Officer or a Responsible Officer of Restaurants to be closed or refranchised referred to the Borrower, (i) confirming compliance with the conditions set forth in paragraphs (h), (i), and (j), of this Article IV and (ii) stating that as of the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in Effective Date only, the Credit Agreement which shall be in form Borrower, individually, and substance acceptable to the Administrative Agenttogether with its Subsidiaries on a consolidated basis, is Solvent.
(g) The Administrative Agent shall have received an agreeement, in form (i) all fees and substance reasonably satisfactory other amounts due and payable on or prior to the Administrative Agent, acknowledging Effective Date and agreeing that certain of the text shown as unmarked text in Exhibit A (ii) to the Fourth Amendment is notextent invoiced two (2) Business Days prior to closing, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder (or shall have received satisfactory evidence that all such fees and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendmentamounts are being paid substantially simultaneously).
(h) The representations As of the Effective Date only, since December 31, 2024, no event resulting in a Material Adverse Effect has occurred and warranties set forth in Section 4 hereof shall be true and correctis continuing.
(i) All fees No Default or Event of Default has occurred and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)is continuing.
(j) The representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties shall be true and correct in all respects as written, including the materiality qualifier) on and as of the Effective Date (other than those representations and warranties that expressly relate to a specific earlier date, which shall be true and correct in all material respects as of such earlier date (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties shall be true and correct in all respects as of such earlier date as written, including the materiality qualifier)).
(k) On or prior to the Effective Date, the Borrower shall deliver to the Administrative Agent and any Lender who so requests a Beneficial Ownership Certification, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation.
(l) Upon the reasonable request of any Lender, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act.
(m) The Administrative Agent shall have been reimbursed for received a Borrowing Request duly executed by a Responsible Officer of the Borrower.
(n) The representations and warranties of the Borrower shall be true and correct in all reasonable material respects (other than those representations and documented fees warranties that are subject to a materiality qualifier, in which case such representations and out-of-pocket charges warranties shall be true and correct in all respects as written, including the materiality qualifier) on and as of the date of such Borrowing (other expenses incurred than those representations and warranties that expressly relate to a specific earlier date, which shall be true and correct in connection all material respects as of such earlier date (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties shall be true and correct in all respects as of such earlier date as written, including the materiality qualifier)).
(o) At the time of and immediately after giving effect to such Borrowing, no Default with this Amendment, including, without limitation, respect to such Borrower shall have occurred and be continuing. Each Borrowing shall be deemed to constitute a representation and warranty by the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or Borrower on the date hereof thereof as to the matters specified in paragraphs (for the avoidance n) and (o) of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Article IV.
Appears in 1 contract
Conditions. This Amendment Agreement shall become effective upon as of the satisfaction first date (the “Refinancing and Incremental Effective Date”) when each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):shall have been satisfied:
(a) This Amendment the Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Party, the Refinancing and Incremental Term Lender and the Administrative Agent and (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Lenders.Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that each such party has signed a counterpart of this Agreement;
(b) The the Administrative Agent shall have received certificates (i) any required notice of prepayment of Term B Loans pursuant to Section 2.10(d) of the Credit Agreement and (ii) any required notice of borrowing of Refinancing and Incremental Term Loans pursuant to Section 2.03 of the Credit Agreement; provided, in each case, that such notice of prepayment and notice of borrowing shall be delivered in accordance with the time periods specified in Sections 2.10(d) and 2.03, as applicable, of the Credit Agreement or such shorter period as the Administrative Agent may agree;
(c) the representations and warranties set forth in Section 4 above shall be true and correct as of the date hereof;
(d) the Administrative Agent shall have received a certificate, dated the Refinancing and Incremental Effective Date and executed by a Responsible Officer of the Borrowers, confirming the accuracy of the representations and warranties set forth in Section 4 above;
(e) the Administrative Agent shall have received, on behalf of itself and the Refinancing and Incremental Term Lender, a favorable written opinion of (A) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, as New York and Delaware special counsel for the Loan Parties and (B) McGuireWoods LLP, as Florida and Georgia counsel for the Loan Parties, in each Loan Party attaching case (i) resolutions or other action authorizing dated the actions under this Amendment and the Credit Agreement as amended herebydate hereof, (ii) incumbency certificates, addressed to the Administrative Agent and the Refinancing and Incremental Term Lender and (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging Agent and agreeing covering such other matters relating to this Agreement as the Administrative Agent shall reasonably request;
(f) the Administrative Agent shall have received customary closing certificates and documentation consistent with those delivered on the 2017 Refinancing Effective Date and such additional customary documents and filings as the Administrative Agent may reasonably require to assure that certain the Refinancing and Incremental Term Loans contemplated hereby are secured by the Collateral ratably with the existing Revolving Facility Loans;
(g) the payment of the text shown as unmarked text in Exhibit A Term B Loan Repayment Amount by the Borrowers to the Fourth Amendment is not, and has never been, effectively part Administrative Agent for the accounts of the Credit Agreementexisting Term B Lenders, despite as a scrivener’s error which included at least part voluntary prepayment in full of the Term B Loans outstanding on the Refinancing and Incremental Effective Date, shall occur substantially simultaneously with the Borrowing of such text as unmarked text in Exhibit A to the Fourth Amendment.Refinancing Term Loans;
(h) The representations the Administrative Agent shall have received written evidence reasonably satisfactory to the Administrative Agent that the notice of redemption with respect to the Notes Redemption has been delivered prior to, or will be delivered substantially concurrently with, the Refinancing and warranties set forth Incremental Effective Date in Section 4 hereof shall be true and correct.accordance with the Senior Unsecured Notes Indenture;
(i) All any fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket expenses (including reasonable fees, charges and other disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) owing by the Borrowers to the Administrative Agent, the Refinancing and Incremental Term Lender and Citigroup Global Markets Inc. (the “Lead Arranger”) and invoiced prior to the date hereof shall have been paid in full (in the case of any such fees and reasonable out-of-pocket expenses incurred in connection with this AmendmentAgreement or the Refinancing and Incremental Term Loans, including, without limitation, the reasonable fees and disbursements of counsel for subject to any agreed-upon limits contained in any letter agreement with the Administrative AgentAgent or the Lead Arranger, as applicable, or their affiliates entered into in connection with this Agreement or the Refinancing and Incremental Term Loans);
(j) the Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information required by Section 3.25(a) of the Credit Agreement, to the extent documented such information has been requested not less than ten (10) Business Days prior to or the Refinancing and Incremental Effective Date; and
(k) entry into this Agreement and the incurrence of the Refinancing and Incremental Term Loans on the date hereof (for Refinancing and Incremental Effective Date does not violate, conflict with or result in a breach of, the avoidance of doubtCredit Agreement, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this including Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)2.21 thereof.
Appears in 1 contract
Sources: Incremental Assumption Agreement and Amendment No. 6 (Presidio, Inc.)
Conditions. This Amendment shall become effective upon The following conditions must all be satisfied to the satisfaction of Ash, which satisfaction shall be evidenced by a certificate from Ash to the Escrow Agent that such conditions have been satisfied. In the event the Company has made efforts to satisfy such conditions, such consent shall not be arbitrarily withheld but Ash may exercise reasonable discretion in whether to give or withhold the consent on the basis of a reasonable good faith belief that one or more of the conditions has not been satisfied. The certificate from Ash to the Escrow Agent shall certify that the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lendersmet or waived to its satisfaction.
(b) The Administrative Agent a. Ash shall have received certificates executed a letter from AMRESCO Leasing Corporation to the effect that all of the AMRESCO conditions precedent, and other requirements have been met by RSi and that AMRESCO is willing to comply with its funding obligations under the Amended and Restated Program Agreement with RSi dated March 10, 1999 for the funding of units.
▇. ▇▇▇ shall have received a Responsible Officer letter from RSG Investments, LLC to the effect that its Equipment, Purchase, and Sale Agreement with RSi has been modified and settled according to the following terms: $300,000 has been completely forgiven or repaid through a revenue sharing arrangement relative to a fixed number (not to exceed 2,000) of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment refreshment centers, $500,000 has been converted to Preferred Stock, $250,000 has been paid, and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies balance of $750,000 will be repaid at the time of the Organization Documents initial public offering of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (RSi or a certification that there shall have been no changes to the Organization Documents within eight months of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectsettlement.
(c) The Administrative Agent ▇. ▇▇▇ shall have received a certificate signed by a Responsible Officer from the president of RSi to the effect that: - the Company believes that the letter identified in paragraph 3a above is true and correct and that all of the Borrower certifying (i) AMRESCO conditions precedent, underwriting requirements and other requirements have been met by RSi and that AMRESCO is willing to comply with its funding obligations under the Amended and Restated Program Agreement with RSi dated March 10, 1999 for the funding of units. - the Company believes that the conditions specified letter identified in this Section 5 have been satisfiedparagraph 3b above is true and correct and that the Equipment, Purchase, and (ii) that there Sale Agreement with RSi has been no event or circumstance since December 29modified and settled according to the terms set forth in paragraph 3b above. - the Company has effectuated a reverse stock split of the common stock (but not the Preferred Stock) of the Company and that the percentage of ownership represented by the stock certificate set forth in paragraph 1.2 hereof, 2015 that has had or could be reasonably expected to haveon a fully diluted basis, either individually or is as represented and warranted in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to Acquisition Agreements. - the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be the Acquisition Agreements are true and correct.
(i) All fees correct as of a date immediately preceding the distribution of escrowed documents, funds, and expenses due and owing stock certificate. Ash will only issue such certificate to the Administrative Escrow Agent in the event that: - Ash has no reasonable basis to believe that such certificate of the president of RSi (see paragraph 3c) is inaccurate in any material respect. - Ash's financial and business due diligence as to RSi has been completed to its satisfaction. - All of the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as conditions of February 8, 2017 by and among the Administrative Agent and the Borrower, shall this paragraph 3 have been paid (met or shall be paid concurrently with the closing of this Amendment)waived to its satisfaction.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Subscription Agreement (Eroom System Technologies Inc)
Conditions. This Amendment shall The Scheme will not become effective upon Effective and the satisfaction obligations of Bidder under clause 2.2 do not become binding unless and until each of the conditions set out in the first column of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):
table has been satisfied or waived in accordance with this clause 3.1: Condition Responsibility Waiver (a) This Amendment shall have been duly executed and delivered by each Loan Party(OIO approval) before 5.00pm on the Business Day before the End Date, Bidder has obtained all consents required under the Administrative Agent and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ to the Lenders.
implementation of the Scheme on terms or conditions acceptable to Bidder acting reasonably, provided that Bidder may not withhold its approval to the terms or conditions of any consent if the terms or conditions imposed: (i) are standard Overseas Investment Office consent conditions; or (ii) arise directly from plans, intentions or undertakings referred to in Bidder’s application; Bidder None (b) The Administrative Agent shall have received certificates executed by a Responsible Officer (FIRB approval) before 8.00am on the End Date, one of each Loan Party attaching the following has occurred: (i) resolutions Bidder has received written advice under the Foreign Acquisitions and Takeovers ▇▇▇ ▇▇▇▇ (Cth) (FATA), by or other action authorizing on behalf of the actions under this Amendment and Treasurer of the Credit Agreement as amended herebyCommonwealth of Australia (Treasurer), advising that there is no objection to the Transaction, either unconditionally or on terms or conditions acceptable to Bidder, acting reasonably; or (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, Treasurer ceases to be empowered to make an order under the FATA in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes relation to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Transaction; Bidder None (c) The Administrative Agent shall (Regulatory clearances) before 8.00am on the End Date Bidder and Target have received a certificate signed by a Responsible Officer all approvals or consents from the Takeovers Panel, NZX and ASX as are required to implement the Transaction. Target and Bidder None (d) (Court approval) subject to clause 3.2, the Court approves the Scheme in accordance with section 236 of the Borrower certifying Companies Act; Bidder and Target None (e) (Shareholder approval) Shareholders approve the Scheme at the Scheme Meeting by the requisite majorities in accordance with sections 236A(2)(a) and 236A(4) of the Companies Act; Bidder and Target None Condition Responsibility Waiver (f) (No restraint) no judgment, order, restraint or prohibition enforced or issued by any Government Agency is in effect at 5.00pm on the Business Day before the Implementation Date, that prohibits, prevents or materially restricts the implementation of the Scheme; Bidder and Target Bidder and Target (g) (No Material Adverse Change) no Material Adverse Change occurs between the date of this agreement and 5.00pm on the Business Day before the Implementation Date; None Bidder (h) (No Prescribed Occurrence) no Prescribed Occurrence occurs between the date of this agreement and 5.00pm on the Business Day before the Implementation Date; Target Bidder (i) (Target Warranties and Undertaking) no material breach of the Target Undertakings up to 5:00pm on the Business Day before the Implementation Date and Target Warranties are true and correct in all material respects as at 5:00pm on the Business Day before the Implementation Date; Target Bidder (j) (Rosehip Oil Agreement) Bidder and FC agreeing to amend the Rosehip Oil Agreement on terms reasonably satisfactory to Bidder acting reasonably; and Target and Bidder Bidder and Target (k) (▇▇▇▇▇▇ Consent) the Target obtaining any consent required from ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ under the Lanocorp Shareholders Agreement: (i) so that the conditions specified Lanocorp Companies can provide guarantees and security in this Section 5 have been satisfied, and favour of any financier of the Bidder or its Related Entities (Bidder Financier) promptly following completion of the Transaction; (ii) so that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or security over the shares in the aggregate, Lanocorp Companies (other than shares held by ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇) may be granted in favour of any Bidder Financier including a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to waiver of any pre-emptive rights should the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).Bidder Financier exercise its security over those shares. Target Bidder
Appears in 1 contract
Sources: Scheme Implementation Agreement
Conditions. This The effectiveness of this Amendment shall become effective upon the satisfaction of is subject to the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment each Loan Party shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.this Amendment;
(b) The Administrative Agent Borrower shall have received certificates executed by a Responsible Officer of delivered evidence satisfactory to Agent and each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan PartyBuyers, in each casetheir sole discretion, certified as true, accurate and complete and in effect on that the date hereof (or a certification that there Restructuring shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.consummated;
(c) The Administrative Agent Gastar Exploration USA, Inc., as the successor-in-interest to FSW, as the successor-in-interest to FAD, shall have received executed and delivered a certificate signed by a Responsible Officer Confirmatory Deed with regard to each of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or Mortgages of record in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency State of West Virginia made by FAD in favor of the Loan Parties on a consolidated basis before and after Agent, for the benefit of the Buyers, giving effect to this Amendmentthe merger of FAD with and into FSW, from with FSW as the chief financial officer surviving corporation, and the change in the legal name of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor InvestorFSW to Gastar Exploration USA, Inc., in form and substance reasonably acceptable each case pursuant to the Administrative AgentRestructuring, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds each of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which Confirmatory Deeds shall be in form and substance acceptable satisfactory to Agent and each of the Buyers;
(d) each Loan Party that has changed its legal name as a result of the Restructuring shall have delivered written notice of such name change to each depository bank that is a party to a Deposit Account Control Agreement of which such Loan Party is also a party in accordance with the terms of such Deposit Account Control Agreement, copies of which notices shall have been delivered to Agent and each of the Buyers;
(e) 1212117 shall have executed and delivered a Joinder to Guaranty, in the form of Exhibit E attached hereto, and a Joinder to Security Agreement, in the form of Exhibit F attached hereto;
(f) Borrower shall have caused each of its Subsidiaries (other than Gastar Exploration Texas LLC and Gastar Exploration Texas LP) to issue replacement stock certificates evidencing one hundred percent (100%) of the issued and outstanding capital stock of such Subsidiary after giving effect to the Administrative Agent.consummation of the Restructuring, shall have delivered such stock certificates, along with assignments separate from certificate executed in blank and irrevocable proxies executed by the applicable Loan Party, to the Agent in accordance with the Pledge Agreements, and shall have stamped each of the original stock certificates of which such replacement certificates are being issued “cancelled”;
(g) The Administrative Agent all proceedings taken in connection with the transactions contemplated by this Amendment and the Restructuring, and all documents, instruments and other legal matters incident thereto, shall have received an agreeement, in form and substance reasonably be satisfactory to the Administrative Agent, acknowledging its legal counsel, and agreeing that certain each of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.Buyers;
(h) The no Event of Default (as defined in the Initial Notes) shall have occurred and be continuing or would arise from the Loan Parties entering into this Amendment or any of the other agreements, documents and instruments to be executed by each such Person pursuant to this Amendment (collectively, the “Other Amendment Documents”) or, after giving effect to the consent set forth in Section 1 above, from the consummation of the Restructuring;
(i) all of the representations and warranties set forth in Section 4 hereof 6 below shall be true true, complete and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).;
(j) The Administrative Agent Borrower shall have delivered such evidence of the authority of the Loan Parties to execute, deliver and perform its obligations under this Amendment and all of the Other Amendment Documents, and such evidence of the authority of the Borrower and its Subsidiaries to consummate the Restructuring, as the Agent and each of the Buyers may require, including but not limited to (i) a copy of resolutions duly adopted by the board of directors (or other governing authority) of each such Person, authorizing the execution by each such Person of this Amendment and the Other Amendment Documents, as well as all agreements, documents and instruments to be executed by each such Person in connection with the consummation of the Restructuring, in each case certified as complete and correct by the corporate secretary or similar officer of each such Person, (ii) such other approvals and/or consents as may be required from all other Persons whose approval or consent is necessary or required to enable the Loan Parties to enter into this Amendment and the Other Amendment Documents, to perform their respective obligations hereunder and thereunder and to consummate the Restructuring, (iii) certificates of merger or amalgamation or other evidence that the transactions contemplated by the Restructuring have been reimbursed for approved by applicable governmental authorities and (iv) a certificate of the secretary of each of the Loan Parties attaching and certifying as to each of the organizational documents of such Loan Party, as such organizational documents are in effect after giving effect to the consummation of the Restructuring, in each case certified by the Secretary of State (or similar, applicable governmental authority) of the state of incorporation or formation of each Loan Party, if and as applicable;
(k) Borrower shall have paid all reasonable and documented fees and out-of-pocket charges and other expenses incurred of the Agent in connection with this Amendment, including, without limitation, the reasonable attorneys’ fees and disbursements expenses; and
(l) each Loan Party shall have delivered such other instruments, documents, certificates, consents, waivers and opinions as the Agent and any of counsel for the Administrative Agent, to Buyers may request. The date on which the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements foregoing conditions shall have been satisfied shall be sufficient documentation for referred to herein as the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)“Omnibus Amendment Effective Date.”
Appears in 1 contract
Sources: Consent and Omnibus Amendment to Transaction Documents (Gastar Exploration LTD)
Conditions. This Amendment (including the amendments set forth in ARTICLE I) and the obligations of the 2024 Replacement Term Lenders to make 2024 Replacement Term Loans shall become effective upon the satisfaction when all of the following conditions precedent no later than February 9, 2017 set forth in this ARTICLE IV shall have been satisfied or waived in accordance with Section 16.01 of the Existing Credit Agreement (the date such conditions are satisfied or waived, the “Fifth Amendment Effective Date”):
(a) This Amendment The Agent (or its counsel) shall have been duly executed received (i) from each 2024 Replacement Term Loan Exchange Lender, each 2024 Post-Closing Option Lender and delivered each 2024 Additional Replacement Term Lender, (ii) from Lenders that constitute Majority Lenders and (ii) from each of the Loan Parties, either (x) a counterpart of this Amendment signed on behalf of such party (or a 2024 Replacement Term Loan Consent) or (y) written evidence reasonably satisfactory to the Agent (which may include delivery of a signed signature page of this Amendment by each facsimile or other means of electronic transmission (e.g., “pdf”) that such party has signed a counterpart of this Amendment (or a 2024 Replacement Term Loan Party, the Administrative Agent and the LendersConsent).
(b) The Agent shall have received from the Loan Parties a certified copy of (i) the charter documents and by-laws (or equivalent governing documents) of each Loan Party organized in Canada, the United States of America or the United Kingdom (each, an “Applicable Loan Party”); (ii) the resolutions of the board of directors (or any duly authorized committee or other governing body thereof) or of the shareholders, as the case may be, of each Applicable Loan Party approving the repricing of the Term Loans and other matters provided for in this Amendment and approving the entering into of all other related Credit Documents to which they are a party and the completion of all transactions contemplated thereunder; (iii) all other instruments evidencing necessary corporate, company or partnership action of each Applicable Loan Party and of any required Authorization with respect to such matters; and (iv) certifying the names and true signatures of its officers authorized to sign this Amendment and the other Credit Documents manually or by mechanical means; provided that, a certificate from each such Applicable Loan Party certifying that there have been no changes to any of the foregoing items or matters since the date of the last certified copies thereof delivered by such Applicable Loan Party in connection with the Existing Credit Agreement shall be deemed to satisfy the condition in this Section 4.01(b).
(c) The Agent shall have received a certificate of status, compliance, good standing or like certificate with respect to each Applicable Loan Party issued by the appropriate government official in the jurisdiction of its incorporation or organization.
(d) Each of the representations and warranties contained in ARTICLE III above shall be true and correct.
(e) The Agent shall have received a certificate, dated as of the Amendment Date and signed by a Responsible Officer of the Borrower, confirming the accuracy of the representations and warranties set forth in ARTICLE III.
(f) The Agent shall have received, to the extent invoiced at least three Business Days prior to the Amendment Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (but excluding any fees, charges and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Credit Document on or prior to the Amendment Date (which amounts may be offset against the proceeds of the Term Loans made hereunder).
(g) The Borrower shall have paid to the Agent, for the ratable account of the Existing Term Lenders immediately prior to Amendment Date, simultaneously with the making of the 2024 Replacement Term Loans, all accrued and unpaid interest on their respective Existing Term Loans to, but not including, the Amendment Effective Date.
(h) the Administrative Agent shall have received certificates executed by a Responsible Officer reasonably satisfactory opinions of each Loan Party attaching (i) resolutions or other action authorizing ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇ LLP, special Delaware counsel to the actions under this Amendment and the Credit Agreement as amended herebyLoan Parties, (ii) incumbency certificatesOsler, ▇▇▇▇▇▇ & Harcourt LLP, special Ontario counsel to the Loan Parties, (iii) certified copies of the Organization Documents of such Loan Party▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes special Nova Scotia counsel to the Organization Documents of such Loan Party since August 2Parties, 2016) and (iv) such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York and United Kingdom counsel to the Loan Parties, in each case as is relevant to confirm, inter alia, corporate existence, due authorization, non-contravention of other documents and certifications as the Administrative Agent may reasonably require to evidence that each Debt of any Loan Party or any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) which is duly organized or formedoutstanding in an aggregate principal amount exceeding $125,000,000, execution by the Applicable Loan Parties and enforceability of the Amendment, and that each Loan Party is validly existing, in good standing the validity and qualified perfection of the Encumbrances created under the applicable Credit Documents after giving effect to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectthis Amendment.
(ci) The Administrative Agent shall have received a certificate certificate, dated as of the Amendment Date and signed by a Responsible Financial Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate Open Text attesting to the Solvency of the Loan Parties on Open Text and its Subsidiaries, taken as a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)whole.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel received an Accommodation Notice for the Administrative Agent, to the extent documented prior to or Accommodation occurring on the date hereof Amendment Effective Date in accordance with the delivery requirements under Section 3.02 of the Existing Credit Agreement (for or such later time as may be agreed by the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth Agent in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafterits discretion).
Appears in 1 contract
Sources: Credit Agreement (Open Text Corp)
Conditions. This Amendment Agreement shall become effective upon as of the satisfaction first date (the “Amendment Effective Date”) when each of the following conditions precedent no later than February 9, 2017 shall have been satisfied (or waived by the “Fifth Amendment Effective Date”Revolving Lenders constituting the Required Facility Lenders under the 2021 Revolving Facility):
(a) This Amendment the Sub-Agent (or its counsel) shall have been received a duly executed and delivered by counterpart of this Agreement from each Loan Party, the Administrative Refinancing Revolving Lenders, the Extending Revolving Lenders, each Non-Extending Revolving Lender, each Issuing Bank, the Resigning Issuing Bank, the Sub-Agent and the Lenders.Administrative Agent;
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this representations and warranties set forth in Section 7 above shall be true and correct as of the Fifth Amendment Effective Date and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies each of the Organization representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Fifth Amendment Effective Date as if made on and as of such Loan Partydate (except to the extent already qualified by materiality, in each which case, certified as true, accurate such representations and complete warranties shall be true and correct in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationall respects), except to the extent that failure such representations and warranties expressly relate to do so could not reasonably an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date (except to the extent already qualified by materiality, in which case, such representations and warranties shall be expected to have a Material Adverse Effect.true and correct in all respects);
(c) The Administrative no Default or Event of Default shall exist, or would result from this Agreement;
(d) the Sub-Agent shall have received a certificate signed by from a Responsible Officer of the Borrower certifying (ias to the matters set forth in Sections 8(b) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.8(c);
(de) The Administrative the Sub-Agent shall have received certificates of good standing from the secretary of state of the state of organization of each Loan Party (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of each Loan Party certifying true and complete copies of the Organizational Documents (certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation, organization or formation) attached thereto and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Fifth Amendment Effective Date;
(f) the Sub-Agent shall have received a solvency certificate attesting to the Solvency from a Financial Officer of the Loan Parties on a consolidated basis before and Borrower (after giving effect to this Amendment, from Agreement and the chief financial officer transactions contemplated hereby) substantially in the form of Exhibit I attached to the Borrower.Existing Credit Agreement;
(eg) The Administrative the Sub-Agent shall have received an executed copy of an agreement by a Sponsor Investorcustomary legal opinion from Weil, in form and substance reasonably acceptable Gotshal & M▇▇▇▇▇ LLP, counsel to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than Loan Parties;
(h) the Fifth Amendment Effective Date.
(f) The Administrative Agent Date Refinancing shall have received the list of Restaurants to be closed been consummated or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to consummated substantially concurrently with the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain effectiveness of the text shown Agreement in accordance with the terms hereof (as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.applicable);
(i) All the Borrower shall have paid (or caused to be paid) (i) the Closing Fee, (ii) the fees and expenses due and owing payable to the Administrative Agent and the Lenders and required to be paid Refinancing Left Lead Arranger (as defined below) on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter Engagement Letter, dated as of February 8April 5, 2017 2021 (the “Engagement Letter”), by and among the Refinancing Left Lead Arranger and the Borrower and (iii) all expenses of the Refinancing Left Lead Arranger and the Administrative Agent payable pursuant to Section 10.04 of the Amended Credit Agreement or the Engagement Letter which have accrued to or are otherwise payable on the Fifth Amendment Effective Date (including reasonable and documented fees, disbursements and other charges of counsel), in each case to the Borrower, shall have been paid (or shall be paid concurrently with extent the closing of this Amendment).Borrower has received invoices therefor at least three Business Days prior to the Fifth Amendment Effective Date; and
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, the Sub-Agent and each Refinancing Revolving Lender shall have received, at least three (3) Business Days prior to the Fifth Amendment Effective Date, (i) all documentation and other information in respect of the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, that has been reasonably requested in writing by it no later than five (5) Business Days prior to the Fifth Amendment Effective Date and (ii) to the extent documented prior to or on the date hereof (for Borrower qualifies as a “legal entity customer” under the avoidance of doubtBeneficial Ownership Regulation, a summary statement Beneficial Ownership Certification in relation to the Borrower (provided that, upon the execution and delivery by such Refinancing Revolving Lender of such feesits signature page to this Agreement, charges and disbursements shall be sufficient documentation for the obligations condition set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter8(j) shall be deemed to be satisfied).
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Conditions. This The effectiveness of this Amendment shall become effective upon is subject to the satisfaction of each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment the Agent shall have been duly received this Amendment, executed and delivered by each Loan Party, the Administrative Agent and the Lenders.parties hereto;
(b) The Administrative the Agent shall have received certificates executed by evidence that BVI Issuer shall have been formed as a Responsible Officer direct Subsidiary of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended herebyAVH, (ii) incumbency certificates, (iii) including receipt of certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.BVI Issuer;
(c) The Administrative the Agent shall have received a certificate signed by a Responsible Officer of the Borrower Secretary or Assistant Secretary of BVI Issuer, dated the Effective Date, certifying (i) that the conditions specified in this Section 5 have been satisfiedresolutions of the Board of Directors of BVI Issuer authorizing the execution, delivery and performance of the Loan Documents to which BVI Issuer is a party and (ii) that there has been no event or circumstance since December 29the incumbency, 2015 that has had or could be reasonably expected authority and signatures of each officer of BVI Issuer authorized to have, either individually or in execute and deliver the aggregate, Loan Documents to which BVI Issuer is a Material Adverse Effect.party and act with respect thereto;
(d) The Administrative the Agent shall have received a certificate attesting Guaranty executed by BVI Issuer;
(e) such Collateral Documents, executed by the parties thereto, necessary for (i) AVH to pledge the capital stock or other equity interests of BVI Issuer to the Solvency Agent and (ii) New Topco to pledge the capital stock or other equity interests of Borrower to the Loan Parties on a consolidated basis before Agent;
(f) the Agent shall have received legal opinions from counsel to AVH and after giving effect BVI Issuer with respect to this Amendment, from the chief financial officer of Guaranty, and the Borrower.applicable Collateral Documents executed by BVI Issuer as the Agent shall reasonably request; and
(eg) The Administrative the Agent shall have received an executed copy evidence of an agreement by a Sponsor Investor, appointment of the Process Agent as BVI Issuer’s authorized agent with all powers necessary to receive on its behalf service of copies of the summons and complaint and any other process which may be served in form and substance reasonably acceptable any action or proceeding arising out of or relating to the Administrative Agent, to purchase Qualified Securities Loan Documents in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain any of the text shown as unmarked text courts in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part State of such text as unmarked text in Exhibit A to the Fourth AmendmentNew York.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This Amendment Lender’s obligation to make available to or for the benefit or account of Borrower portions of the Loan in the amounts and for the purposes set forth in the Disbursement Budget shall become effective upon be subject to the satisfaction of the following all conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of to such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties disbursement set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this AmendmentAgreement, including, without limitation, in Article III hereof, this Disbursement Plan and the reasonable fees and requirement that the Interest Holdback (together, in the aggregate with funds in the Interest Reserve Account, if any) to be in In-Balance. In addition, Lender shall have the right to reasonably require any other document, evidence or information that Lender may request under any provision of this Agreement or the other Loan Documents, or that Lender may otherwise reasonably require. Borrower acknowledges that Lender’s approval process with respect to disbursements of counsel proceeds of the Loan may result in disbursement delays, and Borrower hereby consents to such delays. PCCP Capital I, LLC c/o PCCP, LLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Suite 2222 El Segundo, CA 90245 Attention: Servicing Re: CT/BH Interchange LLC (“Borrower”) Loan # (“Loan”) Ladies and Gentlemen: Pursuant to the terms of that certain Loan Agreement dated as of November , 2010 (the “Loan Agreement”), and the representations and warranties set forth therein and herein, Borrower hereby submits a disbursement request for the Administrative Agentamount of $ . Capitalized terms have the same meanings as in the Loan Agreement This disbursement request (“Request”) shall be deemed to be a representation by Borrower and of the person/entity signing this Request (in the case of the person/entity signing this Request, to person’s/entity’s knowledge) that (A) no Event of Default or Potential Default has occurred or will exist upon the extent documented prior to or on making of this requested disbursement; (B) the representations and warranties contained in the Loan Agreement and in the other Loan Documents are, as of the date hereof hereof, true, correct and complete in all material respects; (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations C) all information set forth in this Section 5(j)Request; provided that supporting documentation and on any exhibit attached hereto is true, correct and complete in all material respects; and (D) all conditions precedent to the disbursement to be made in connection with this Request as required under the Loan Agreement and the other Loan Documents, have been satisfied. The following is an itemized statement of the costs incurred or due for such summary statement which disbursement is provided promptly thereafter)requested with respect to Item 5 shown in Column D of the Disbursement Budget attached as Exhibit C to the Loan Agreement, and the total amount incurred, expended and/or due for Item 5 less prior disbursements.
2) TOTAL DISBURSEMENT REQUEST
Appears in 1 contract
Sources: Loan Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Conditions. This Amendment shall become effective upon The Bank’s obligations to extend credit under the satisfaction of Loan are subject to the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This Amendment There shall have been duly executed and delivered by each Loan Partybe no Event of Default or condition or event which, the Administrative Agent and the Lenders.after notice or lapse of time or both, would constitute such an Event of Default;
(b) The Administrative Agent Bank shall have received certificates executed from counsel to the Borrower favorable opinions as to all matters reasonably requested by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment Bank, in form and substance mutually agreeable to the Borrower and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.Bank;
(c) The Administrative Agent Borrower shall deliver to the Bank duly executed Loan Documents and all other documents or instruments which the Bank shall require in connection with extension of credit under the Loan;
(d) The Borrower shall have received and shall have provided to the Bank evidence of all necessary approvals of federal and state regulatory agencies if required regarding the Loan and the payment of dividends by the Bank Subsidiaries to the Borrower to make all payments under the Loan;
(e) The Borrower shall use the entire loan amount to fund the cash portion of the purchase price to be paid in the merger of The Peoples BancTrust Company, Inc. into the Borrower pursuant to the Agreement and Plan of Merger between the Borrower and The Peoples BancTrust Company, Inc. dated May 21, 2007, and any expenses associated with the Loan;
(f) The Borrower shall continue to fulfill all of the terms, representations, warranties, and covenants of the Loan Documents;
(g) Neither the Borrower nor any Bank Subsidiary shall be subject to any regulatory formal enforcement action;
(h) The Bank shall have conducted an on-site investigation and review of the Borrower and shall have been satisfied in its sole discretion with its findings and of the condition of the Borrower;
(i) The Bank shall have received a certificate signed by a Responsible Officer of the president, a vice president, or other officer(s) of the Borrower, in form and substance mutually agreeable to the Borrower certifying and the Bank, stating (i) that the conditions specified all representations and warranties contained in this Section 5 have been satisfied, Agreement and in all other Loan Documents are true and accurate as of the date of the Closing; (ii) that there has been exists no Event of Default under this Agreement or under any other Loan Document, or any condition or event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing giving of notice or the passage of time, or both, would become an Event of Default under this Amendment).Agreement or under any other Loan Document; and (iii) any other fact or representation reasonably requested by the Bank in its sole discretion; and
(j) The Administrative Agent shall have been reimbursed for all reasonable Borrower and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements each Bank Subsidiary shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)material compliance with all laws, regulations, orders, memoranda, and requirements applicable to them.
Appears in 1 contract
Conditions. This Amendment shall become effective upon 6.1 Conditions to Each of Getty's and PTI's Obligation to Effect the satisfaction Mergers. The respective obligations of Getty and PTI to effect the Mergers will be subject to the fulfillment or waiver by both parties at or prior to the Closing Date of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This Amendment The Getty Merger and this Agreement shall have been duly executed validly approved and delivered adopted by each Loan Party(i) the affirmative vote of the holders of at least that number of outstanding shares of Getty Common Stock required to approve the Getty Merger under the DGCL and Getty's certificate of incorporation and (ii) the affirmative vote of the holders of a majority of the Getty Common Stock not held or directly or indirectly controlled by Messrs. Leo ▇▇▇▇▇▇▇▇▇, ▇▇lt▇▇ ▇▇▇▇▇▇ ▇▇▇ Milt▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ their spouses and affiliated trusts (collectively, the Administrative Agent "Principal Holders") voting on the Getty Merger and this Agreement at the Lenders.
stockholders' meeting referred to in Section 5.2 (the "Getty Stockholder Approvals"); (b) The Administrative Agent PTI Merger and this Agreement shall have received certificates executed been validly approved and adopted by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions affirmative vote of the holders of at least that number of LP Units required to approve the PTI Merger under this Amendment the NLPA and the Credit Partnership Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been the affirmative vote of the holders of a majority of the LP Units not held or directly or indirectly controlled by the Principal Holders voting on the PTI Merger and this Agreement at the unitholders' meeting referred to in Section 5.2 (the "PTI Unitholder Approvals"); (c) Neither Getty nor PTI shall be subject to any order, decree, ruling or injunction of a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, and no event law, statute, rule or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent regulation shall have received been promulgated or enacted by a certificate attesting to governmental or regulatory authority, which prohibits the Solvency consummation of the Loan Parties transactions contemplated by this Agreement or would otherwise impair the ability of Holdings to operate the business of Getty and PTI on a consolidated basis before and after giving effect to this Amendment, from following the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).Closing;
Appears in 1 contract
Sources: Merger Agreement (Power Test Investors LTD Partnership)
Conditions. This Amendment (a) Upon the satisfaction or waiver of each of the following conditions, this Agreement (other than the agreements specified in Section 2(g), the amendments specified in Section 4 and the extension specified in Section 5 which shall become be effective at the times specified therein upon the satisfaction of the following conditions precedent no later than February 9, 2017 thereto as set forth in this Agreement) shall be deemed to be effective (the date of such satisfaction, the “Fifth Amendment Effective Date”):
(ai) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates counterparts of this Agreement executed by a Responsible Officer of each the Administrative Agent, the Term Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment C Lenders and the 2016 Incremental Revolving Lenders pursuant to an authorization in the form attached hereto as Exhibit A, each, an “Authorization and Consent”), the Borrower and each of the other Credit Agreement as amended hereby, Parties;
(ii) incumbency certificates, the Administrative Agent shall have received (iiiA) certified copies a duly executed Incremental Term Loan Note in favor of the Organization Documents of such each Term Loan Party, C Lender (in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of if requested by such Term Loan Party since August 2, 2016C Lender) and (B) a duly executed Revolving Loan Note in favor of each 2016 Incremental Revolving Lender (in each case, if requested by such 2016 Incremental Revolving Lender);
(iii) no Default or Event of Default shall exist as of the Effective Date immediately prior to or after giving effect to (A) the 2016 Incrementals, (B) the making of any extension of credit on the Effective Date pursuant to this Agreement and (C) the Schurz Acquisition;
(iv) the Borrower shall deliver or cause to be delivered a certificate in form and substance satisfactory to the Administrative Agent and executed by an Authorized Signatory of each Credit Party (including, without limitation, an incumbency certification with respect to each Authorized Signatory to this Agreement) certifying that:
(A) after giving effect to the making of the extensions of credit pursuant to the 2016 Incrementals on the Effective Date (assuming that that the Revolving Loan Commitments (including the 2016 Revolving Loan Commitment Increase) are fully funded on the Effective Date, and giving effect to the Schurz Acquisition), (1) the pro forma Leverage Ratio is less than or equal to a ratio that is at least 0.25 to 1.00 less than the then applicable Debt Incurrence Test and (2) the Credit Parties will be solvent (as determined in accordance with Section 4.1(w) of the Credit Agreement);
(B) attached thereto are:
(1) true, correct and correct copies of (I) the resolutions of the Borrower and each Subsidiary Guarantor authorizing the execution, delivery and performance of this Agreement, the transactions contemplated hereby and the Loan Documents (as amended hereby), (II) any amendments to articles or certificates of formation or incorporation (or the equivalent) and the bylaws or operating agreements (or the equivalent) of the Borrower and each Subsidiary Guarantor not previously delivered to the Administrative Agent (and, which in the case of any amendments to the articles or certificates of formation or incorporation (or the equivalent) shall be certified by the Secretary of State (or similar state official) for the state of incorporation, organization or formation of such other documents and certifications Credit Party as of a date that is no earlier than 30 days prior to the Effective Date (or such earlier date as the Administrative Agent may reasonably require determine in its sole discretion)), (III) the Acquisition Documents with respect to evidence the Schurz Acquisition and (IV) a certificate of good standing for each Credit Party issued by the Secretary of State (or similar state official) for the state of incorporation, organization or formation of such Credit Party as of a date that is no earlier than 30 days prior to the Effective Date (or such earlier date as the Administrative Agent may determine in its sole discretion);
(2) an updated copy of Schedule 2 to the Credit Agreement; and
(3) a schedule listing all Material Real Property (or confirming the absence thereof) to be acquired in the Schurz Acquisition;
(C) each of the representations and warranties made by it (including, without limitation, all representations and warranties with respect to the Restricted Subsidiaries) in or pursuant to the Loan Party Documents are true and correct in all material respects (except to the extent that such representation and warranty is duly organized subject to a materiality or formed, and that each Loan Party is validly existingMaterially Adverse Effect qualifier, in good standing which case it shall be true and qualified to engage correct in business all respects), in each jurisdiction where its ownership, lease or operation case on and as of properties or the conduct Effective Date as if made on and as of its business requires such qualificationthe Effective Date (both before and after giving effect to the 2016 Incrementals), except to the extent that failure such representations and warranties relate to do so could not reasonably an earlier date, in which case such representations and warranties are true and correct in all material respects (except to the extent that such representation and warranty is subject to a materiality or Materially Adverse Effect qualifier, in which case it shall be expected to have true and correct in all respects) as of such earlier date; and
(D) the Schurz Acquisition meets all of the requirements of a Material Adverse EffectPermitted Acquisition.
(cv) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementfollowing, in form and substance reasonably satisfactory to the Administrative Agent:
(A) legal opinions of (1) ▇▇▇▇▇ Day, acknowledging corporate counsel to the Borrower and agreeing that certain its Restricted Subsidiaries, (2) FCC counsel to the Borrower and its Subsidiaries and (3) such other legal opinions as may be reasonably requested by the Administrative Agent (which, in each case, shall be dated as of the text shown as unmarked text in Exhibit A Effective Date, addressed to the Fourth Amendment is not, Lenders and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as include customary reliance by successors and/or assigns of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendmenteach Lender, including, without limitation, each Term Loan C Lender and each 2016 Incremental Revolving Lender);
(B) Uniform Commercial Code Lien, judgment and other applicable searches with respect to (1) each Credit Party, (2) the Sellers, (3) the Acquired Stations, (4) each station received in connection with each station exchange contemplated to occur simultaneously with the Schurz Acquisition (each such station exchange, an “Exchange”) as requested by the Administrative Agent;
(C) with respect to each Loan to be made on the Effective Date pursuant to a Base Rate Advance, a completed and duly executed Request for Advance substantially in the form of Exhibit D to the Credit Agreement;
(D) with respect to each Loan to be made on the Effective Date pursuant to a LIBOR Advance, a completed and duly executed Request for Advance substantially in the form of Exhibit D to the Credit Agreement together with a letter indemnifying the Term Loan C Lenders and/or the 2016 Incremental Revolving Lenders, as applicable, in the manner set forth in Section 2.9 of the Credit Agreement;
(E) evidence that (1) the Schurz Acquisition has been approved by the board of directors (or equivalent governing body) of the Seller; (2) all Necessary Authorizations relating to the execution, delivery and performance of this Agreement, the Credit Agreement (as modified and supplemented hereby) and any other documents in connection therewith and the consummation of the Schurz Acquisition and the Exchanges (including, without limitation, all asset purchases, Station Servicing Arrangements and/or option agreements, put/call agreements and agreements evidencing rights to assign any assets, in each case related to the Schurz Acquisition and the Exchanges) have been obtained or made and are in full force and effect; and (3) the Schurz Acquisition and the Exchanges have been, or will be, completed contemporaneously with the funding of the Term Loan C on terms and conditions consistent with Acquisition Documents received by the Administrative Agent with respect thereto and in accordance with all Applicable Laws; and
(F) copies of insurance certificates covering the assets of the Borrower and its Restricted Subsidiaries, and otherwise meeting the requirements of Section 5.5 of the Credit Agreement (including, without limitation, endorsements naming the Administrative Agent as lender’s loss payee and additional insured, as applicable);
(vi) The Borrower shall have paid (A) to the Administrative Agent and ▇▇▇▇▇ Fargo Securities, LLC for the account of themselves, the other Lead Arrangers and the Lenders (including, without limitation, each of the Term Loan C Lenders and the 2016 Incremental Revolving Lenders), as applicable, all of the respective fees due to them on the Effective Date and any other accrued and unpaid fees or commissions due on the Effective Date, (B) all of the reasonable out-of-pocket fees and expenses of the Administrative Agent, the Lead Arrangers and their respective affiliates, including without limitation, all reasonable and invoiced fees, charges and disbursements of counsel for (or directly to such counsel if requested by the Administrative Agent, ) to the extent documented accrued and unpaid prior to or on the date hereof (for the avoidance of doubtEffective Date, a summary statement plus such estimate of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be sufficient documentation for incurred by it through the obligations closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent) and (C) to any other Person such amount as may be due thereto on the Effective Date in connection with the transactions contemplated hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any document in connection with this Agreement;
(vii) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, business and other due diligence with respect to the business, assets, liabilities, operation and condition (financial or otherwise) of the Acquired Stations and with respect to the Schurz Acquisition and the Exchanges; and
(viii) The Borrower shall have satisfied each of the applicable conditions set forth in Sections 2.14 and 3.2 of the Credit Agreement and the definition of Permitted Acquisition in the Credit Agreement.
(b) The amendments specified in Section 4 shall be effective upon the satisfaction of each of the conditions specified in clause (a) of this Section 5(j); provided 6 and receipt by the Administrative Agent of counterparts of this Agreement or Authorizations and Consents executed by Lenders (including the Term Loan C Lenders and the 2016 Incremental Revolving Lenders) constituting Required Lenders.
(c) The extension specified in Section 5 shall be effective upon the satisfaction of each of the conditions specified in clause (a) of this Section 6 and receipt by the Administrative Agent of counterparts of this Agreement or Authorizations and Consents executed by each Lender with a Revolving Loan Commitment. Without limiting the generality of the provisions of Section 9.3 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 6, each Lender (including, without limitation, any Term Loan C Lender or 2016 Incremental Revolving Lender) that supporting documentation for has signed this Agreement or an Authorization and Consent 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 summary statement is provided promptly thereafter)Lender prior to the proposed Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Second Amendment and Incremental Facility Agreement (Gray Television Inc)
Conditions. This Amendment The consummation of the transactions set forth in Section 3 of this Agreement shall become effective upon be subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed received from each of the Borrower and delivered by each Loan Party, the Restatement Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent and the Lenders(which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Collateral Agent (or its counsel) shall have received certificates executed by a Responsible Officer from each of each Loan Party attaching the Borrower and the Material Subsidiaries either (i) resolutions a counterpart of the Collateral Agreement signed on behalf of such party or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, written evidence satisfactory to the Collateral Agent (iii) certified copies which may include telecopy or electronic transmission of a signed signature page of the Organization Documents Collateral Agreement) that such party has signed a counterpart of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectCollateral Agreement.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer written opinions dated the Restatement Effective Date of the Borrower certifying (i) that D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, New York counsel for the conditions specified Borrower and the Material Subsidiaries, substantially in this Section 5 have been satisfiedthe form of Exhibits D-1 and D- 2, and covering, respectively, such other matters relating to (x) the Borrower, the Material Subsidiaries and the Loan Documents (as defined in the Restated Revolving Credit Agreement) or (y) the Borrower, the Material Subsidiaries and the Loan Documents (as defined in the Restated Term Loan Credit Agreement), in each case as the Administrative Agent shall reasonably request, and (ii) that there has been no event or circumstance since December 29Morris, 2015 that has had or could be reasonably expected to haveNichols, either individually or Arsht & T▇▇▇▇▇▇ LLP, special Delaware counsel for the Borrower and the Material Subsidiaries, substantially in the aggregateform of Exhibit D-3, a and covering such other matters relating to the Borrower, the Material Adverse EffectSubsidiaries and the Collateral Agreement as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(d) The Administrative Agent shall have received a certificate attesting such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the Solvency organization, existence and good standing of the Borrower and the Material Subsidiaries, the authorization of the Loan Parties on a consolidated basis before Documents and after giving effect any other legal matters relating to this Amendment, from the chief financial officer of the Borrower, the Material Subsidiaries or the Loan Documents, all in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received an executed copy a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of an agreement by a Sponsor Investorthe Borrower, confirming the representations and warranties set forth in form paragraphs (a) and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds (b) of such issuance no later than the Fifth Amendment Effective DateSection 4 of this Agreement.
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the list Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of Restaurants all out-of-pocket expenses required to be closed reimbursed or refranchised referred to in paid by the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative AgentBorrower under any Loan Document.
(g) The Administrative Agent shall be satisfied that all lending commitments under the 364-Day Revolving Credit Agreement dated as of July 11, 2008 (the “364-Day Agreement”), among the Borrower, the lenders party there and JPMorgan Chase Bank, N.A., as administrative agent, shall be terminated, and all obligations accrued and owing under the 364-Day Agreement shall be paid, on the Restatement Effective Date.
(h) The Administrative Agent shall have received an agreeementall documentation and other information reasonably requested by it to satisfy the requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(i) The Administrative Agent shall have received a completed Perfection Certificate (as defined in form the Collateral Agreement), dated as of the Restatement Effective Date and substance signed by a Financial Officer and the chief legal officer of the Borrower, together with all attachments contemplated thereby, including the results of a recent search of the Uniform Commercial Code (or equivalent) filings made with respect to the Borrower and the Material Subsidiaries in the jurisdictions contemplated by the Perfection Certificate, and such search shall reveal no Liens on any of the assets of the Borrower or any of the Material Subsidiaries, except for Liens permitted by Section 5.08 of each of the Restated Credit Agreements or discharged on or prior to the Restatement Effective Date pursuant to documentation reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable received evidence of insurance coverage satisfying the applicable requirements of the Loan Documents. The Administrative Agent shall notify the Borrower and documented fees the Lenders of the Restatement Effective Date, and out-of-pocket charges such notice shall be conclusive and other expenses incurred in connection with this Amendment, including, without limitationbinding. Notwithstanding the foregoing, the reasonable fees and disbursements consummation of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations transactions set forth in Section 3 of this Section 5(j); provided that supporting documentation for Agreement shall not become effective unless each of the foregoing conditions is satisfied (or waived by the Restatement Lenders) at or prior to 3:00 p.m., New York City time, on February 20, 2009 (and, in the event such summary statement is provided promptly thereafterconditions are not so satisfied or waived, this Agreement shall terminate at such time).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Limited Brands Inc)
Conditions. This Amendment Each Commitment Increase shall become effective upon on the satisfaction of proposed effective date set forth in the following conditions precedent no Borrowers’ request for a Commitment Increase or such later than February 9, 2017 (the “Fifth Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, date as the Administrative Agent and the Lenders.
Borrowers agree (b) The the “Increase Effective Date”), which in any event shall be on or after the date on which the Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching received:
(i) resolutions or other action authorizing the actions under this Amendment an Additional Lender Supplement for each Additional Lender participating in such Commitment Increase and the Credit Agreement as amended herebyan Increasing Lender Supplement for each Increasing Lender participating in such Commitment Increase, in each case duly executed by all parties thereto;
(ii) incumbency certificatesa certificate of a Principal Financial Officer dated such date and certifying that, on a pro forma basis (assuming that such Incremental Commitments are fully drawn), WIL-Ireland shall be in compliance with each of the Financial Covenants as of the most recently ended Fiscal Quarter for which financial statements are available;
(iii) certified copies such documents and opinions consistent with those delivered on the Effective Date as to the organizational power and authority of the Organization Documents of Borrowers to borrow hereunder after giving effect to such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications Commitment Increase as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.request;
(civ) The such evidence of appropriate corporate or other organizational authorization on the part of the Borrowers, WIL-Ireland and the other Obligors with respect to such Commitment Increase as the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be may reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.request;
(dv) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement if requested by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed an opinion or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeementopinions, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A from counsel to the Fourth Amendment is not, Borrowers and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A Obligors reasonably satisfactory to the Fourth Amendment.Administrative Agent, covering such matters relating to such Commitment Increase as the Administrative Agent may reasonably request;
(hvi) The a certificate of a Responsible Officer of WIL-Ireland, dated such Increase Effective Date, certifying that (A) the representations and warranties set forth in Section 4 hereof Article VI and in the other Loan Documents are true and correct in all material respects (except to the extent qualified by materiality or reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct.correct in all respects) as of, and as if such representations and warranties were made on, such Increase Effective Date (unless such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall continue to be true and correct in all material respects (except to the extent qualified by materiality or reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct in all respects) as of such earlier date) and (B) no Default or Event of Default has occurred and is continuing on such Increase Effective Date; and
(ivii) All fees other customary closing certificates and expenses due and owing documentation (similar to the Administrative Agent and the Lenders and documentation required to be paid delivered on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agentunder Section 5.01, to the extent documented prior applicable) relating to or on such Commitment Increase as the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Administrative Agent may reasonably request.
Appears in 1 contract
Conditions. This Amendment shall not become effective upon the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):
until (a) This this Amendment shall have has been duly executed and delivered by each Loan Party, the Administrative Agent Borrower and the Lenders.
Majority Banks; (b) The Administrative Agent the Borrower shall have received certificates executed by a Responsible Officer paid to the Administrative Agent, for the account of each Bank and the Issuing Bank, an amendment fee equal to $315,000 (provided that, if the Borrower terminates the Available Revolving Loan Party attaching Commitments as provided in Section 2.2(e) of the Credit Agreement before August 31, 2005, then each Bank severally agrees to rebate its share of such amendment fee times the quotient of (iA) resolutions the number of days between March 31, 2005 and the Revolving Loan Maturity Date divided by (B) 153); (c) the Borrower shall have deposited, or other action authorizing caused to be deposited, in the actions Letter of Credit Collateral Account an additional $3,000,000 over the amount then required to be in the Letter of Credit Collateral Account on the day of deposit under this Amendment and the Credit Agreement as amended herebyin effect immediately before the effectiveness of this Amendment; (d) the Borrower shall have paid, (ii) incumbency certificatesto the extent invoiced, (iii) certified copies all out-of-pocket expenses of the Organization Documents Administrative Agent required to be reimbursed or paid by the Borrower under the Credit Documents, such expenses to include the legal fees of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Administrative Agent, and of FTI Consulting, Inc., advisor to such Loan Party, in each case, certified as true, accurate and complete and in effect on counsel; (e) the date hereof (or a certification that there Borrower shall have been no changes executed and delivered, or caused the appropriate Subsidiary to execute and deliver, to the Organization Documents of Administrative Agent such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan allow amounts due hereunder to be electronically debited from a specified account of such Credit Party is duly organized as the Borrower may designate (and the Borrower, on behalf of itself or formedsuch other Credit Party, as appropriate, hereby authorizes the Administrative Agent to cause the payment of such amounts by electronic funds transfer); (f) the Borrower shall have delivered to the Administrative Agent a certificate of the Secretary or an Assistant Secretary as to the resolutions of the Board of Directors of the Borrower authorizing the execution and delivery of this Amendment, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or (g) the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying such other documents and instruments (iincluding Security Documents) as it may reasonably request; provided, however, that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds if all of such issuance no later than the Fifth conditions are not satisfied by 2:00 p.m., Houston time, on May 23, 2005, then this Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agentof no force or effect.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Credit Agreement (Integrated Electrical Services Inc)
Conditions. This The effectiveness of this Amendment No. 7 shall become effective upon be subject to the satisfaction of fulfillment by the following conditions precedent no later than February 9Borrowers, 2017 (the “Fifth Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, in a manner satisfactory to the Administrative Agent and the LendersLender Parties, of all of the conditions precedent set forth in this Article V, and the date on which all such conditions shall have been fulfilled to the satisfaction of the Administrative Agent and the Lender Parties, and this Amendment No. 7 shall have become effective, shall be herein called the "Effective Date".
(a) The representations and warranties contained herein and each other agreement, instrument, certificate or other writing delivered to the Administrative Agent or any Lender Party pursuant hereto or to the Credit Agreement shall be correct on and as of the date hereof after giving effect to this Amendment No. 7 as though made on and as of such date, (b) no Default or Event of Default shall have occurred and be continuing on the Effective Date or would result from the taking effect of this Amendment No. 7 or the transactions contemplated hereby, and (c) all of the conditions precedent to the effectiveness of this Amendment No. 7 shall have been satisfied; and the execution and delivery of this Amendment No. 7 constitutes the Borrowers' certification to the Lender Parties and the Administrative Agent as to the truth, accuracy and completeness of the matters set forth in this Section 5.1.
5.2 The Administrative Agent shall have received certificates executed copies of resolutions adopted by a Responsible Officer MediaBay's board of each Loan Party attaching (i) resolutions or other action directors, authorizing the actions under this Amendment execution, delivery and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies performance of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedAmendment No. 7 Documents, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably all documents incidental thereto shall be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable satisfactory to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds Lender Parties and the Borrower shall receive the proceeds of their counsel, and each such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent person shall have received all such information and such counterpart originals or certified copies of documents as may have been reasonably requested.
5.3 The Borrowers shall have:
(a) paid to Winston & Strawn LLP counsel to the list Administrative Agent, and Richards Spear▇ ▇▇▇▇e & Orbe LLP, counsel to Ark CLO 2000-1, Limit▇▇, ▇▇▇ o▇▇▇▇▇▇▇▇▇▇ ▇ees ▇▇▇ expenses incurred in connection with this Amendment No. 7 or otherwise; and
(b) otherwise complied in all respects with the terms hereof and of Restaurants any other agreement, document, instrument or other writing to be closed or refranchised referred to delivered by any Borrower in connection herewith.
5.4 Each of the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which parties hereto shall be in form have executed and substance acceptable delivered this Amendment No. 7 to the Administrative Agent.
(g) The Administrative Agent 5.5 All proceedings in connection with the transactions contemplated by this Amendment No. 7 and all documents incidental thereto shall have received an agreeement, in form and substance be reasonably satisfactory to the Administrative Agent, acknowledging the Lender Parties and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is nottheir respective counsel, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of each such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, Person shall have been paid (received all such information and such counterpart originals or shall be paid concurrently with the closing certified copies of this Amendment).
(j) The Administrative Agent shall documents as may have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Mediabay Inc)
Conditions. This Amendment The obligations of the Lenders to make Tranche B Term Loans hereunder shall not become effective upon until the satisfaction date on which each of the following conditions precedent no later than February 9, 2017 shall be satisfied (the “Fifth Amendment Effective Date”or waived in accordance with Section 9.02):
(a) This Amendment The Administrative Agent shall have been duly executed and delivered by received from each Loan Party, party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent and the Lenders(which may include a facsimile transmission) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectBorrowing Request.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of the Borrower certifying (i) that Proskauer Rose LLP, New York counsel for the conditions specified in this Section 5 have been satisfied, Loan Parties and (ii) that there has been no event or circumstance since December 29other counsel for the Loan Parties as the Administrative Agent shall reasonably request, 2015 that has had or could each such opinion to be in form, scope and substance reasonably expected satisfactory to have, either individually or in the aggregate, a Material Adverse EffectAdministrative Agent and the Lenders.
(d) The Administrative Agent shall have received a certificate attesting as to each Loan Party (including the Acquired Company and its Designated Subsidiaries) such customary documents and certificates as it shall reasonably have requested relating to the Solvency organization, existence and good standing of such Loan Party and the authorization of the Loan Parties on a consolidated basis before Documents or the Transactions, all in form and after giving effect substance reasonably satisfactory to this Amendment, from the chief financial officer of the BorrowerAdministrative Agent.
(e) The Administrative Agent To the extent required by the penultimate paragraph of this Article IV, the representations and warranties of the Loan Parties set forth in the Loan Documents shall have received an executed copy be true and correct (i) in the case of an agreement by a Sponsor Investorthe representations and warranties qualified as to materiality, in form all respects and substance reasonably acceptable to (ii) otherwise, in all material respects, in each case on and as of the Administrative AgentEffective Date, to purchase Qualified Securities except in the Borrower for not less than $18,500,000 case of any such representation and warranty that expressly relates to a prior date, in gross cash proceeds which case such representation and warranty shall be so true and correct on and as of such prior date and the Borrower Acquired Company Acquisition Agreement Representations shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Datebe true and correct.
(f) The Administrative Agent shall have received a certificate, dated the list Effective Date and signed by the chief financial officer of Restaurants to be closed or refranchised referred to the Parent Borrower, confirming compliance with the conditions set forth in the definition paragraph (e) of “Identified Restaurant Closures/Re-Franchisings this Section and paragraph (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agentj) of this Section.
(g) The Administrative Agent shall have received an agreeementa certificate, dated the Effective Date and signed by the chief financial officer of the Parent Borrower, as to the solvency of the Parent Borrower and the Subsidiaries on a consolidated basis after giving effect to the Transactions, in the form of Exhibit J.
(h) The Collateral and substance Guarantee Requirement shall have been satisfied (subject to the last sentence of the penultimate paragraph of this Section). The Administrative Agent shall have received a completed Perfection Certificate, dated the Effective Date and signed by an executive officer or a Financial Officer of each of the Parent Borrower and the Acquired Company, together with all attachments contemplated thereby.
(i) The Administrative Agent shall have received the results of a search of the UCC (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 Administrative Agent, acknowledging and agreeing Agent that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never Liens indicated by such financing statements (or similar documents) are permitted under Section 6.02 or have been, effectively part or substantially contemporaneously with the initial funding of Loans on the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8will be, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)released.
(j) The Acquisition shall have been consummated, or substantially concurrently with the Effective Date shall be consummated, pursuant to and on the terms set forth in the Acquisition Agreement, and all conditions precedent thereto shall have been satisfied, in each case without giving effect to any amendments, waivers or consents that are adverse in any material respect to the Loan Parties that have not been approved by the Arrangers.
(k) The Administrative Agent shall have received reasonably satisfactory evidence that the Refinancing has been reimbursed for completed or will be completed substantially concurrently with the funding of the Tranche B Term Loans.
(l) The Administrative Agent and the Arrangers shall have received all reasonable and documented fees and out-of-pocket charges other amounts due and other expenses incurred in connection with this Amendmentpayable on or prior to the Effective Date, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented invoiced at least three Business Days prior to the Effective Date, payment or on the date hereof reimbursement of all fees and expenses (for the avoidance of doubt, a summary statement of such including fees, charges and disbursements of counsel) required to be paid or reimbursed by any Loan Party under the Commitment Letter, the Fee Letter or any Loan Document, in each case, payable from the proceeds of the initial funding of the Tranche B Term Loans.
(m) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” rules and regulations, including the USA Patriot Act, at least three Business Days prior to the Effective Date to the extent such information was requested at least 10 Business Days prior to the Effective Date.
(n) The Intercreditor Agreement shall have been duly executed and delivered by each party thereto, and shall be sufficient documentation in full force and effect.
(o) The ABL Credit Agreement shall have been duly executed and delivered by each of the parties thereto, and shall be in full force and effect.
(p) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related consolidated statements of operations, cash flows and shareholders’ equity of each of the Parent Borrower and the Acquired Company for the obligations set forth in this Section 5(jthree most recently completed fiscal years of the Parent Borrower and the Acquired Company, respectively, ended at least 90 days before the Effective Date, accompanied by an unqualified report thereon by their respective independent registered public accountants; (ii) the unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Parent Borrower and the Acquired Company for each subsequent fiscal quarter of the Parent Borrower and the Acquired Company, respectively, ended at least 45 days before the Effective Date (the “Quarterly Financial Statements”); provided that supporting documentation and (iii) a pro forma balance sheet and related statement of operations of the Parent Borrower and its subsidiaries (including the Acquired Company) as of and for the twelve-month period ending with the latest quarterly period of the Parent Borrower covered by the Quarterly Financial Statements, in each case after giving effect to the Transactions, all of which financial statements shall be prepared in accordance with GAAP.
(q) Since January 31, 2015, there has not occurred any Company Material Adverse Effect (as defined in the Commitment Letter). Notwithstanding anything to the contrary in clause (e) above, the only representations and warranties the accuracy of which in all material respects shall be a condition to the obligations of the Lenders to make Loans hereunder shall be the Acquired Company Acquisition Agreement Representations and the Specified Representations. Notwithstanding the foregoing, solely with respect to the matters expressly identified in Section 5.13, the satisfaction of the foregoing conditions shall not be required on the Effective Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder, but shall be required to be accomplished in accordance with Section 5.13. The Administrative Agent shall notify the Borrowers and the Lenders of the Effective Date, and such summary statement is provided promptly thereafter)notice shall be conclusive and binding.
Appears in 1 contract
Conditions. This Amendment The amendments set forth in Section 2 shall become effective upon on the satisfaction date (“Amendment Effective Date”) when each of the following conditions precedent no later than February 9, 2017 has been satisfied (or waived as set forth in Section 9.08 of the “Fifth Amendment Effective Date”Existing Credit Agreement):
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed and delivered by received from the Administrative Agent, the L/C Issuer, the Swingline Lender, each Loan Party, Party and Lenders constituting the Required Amendment Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent and the Lenders(which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent Consenting Lenders (as defined below) holding Original Maturity Term B Loans shall have received certificates executed by a Responsible Officer elected to convert an aggregate principal amount of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement at least $2.5 billion of Original Maturity Term B Loans to Term B-6 Loans as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents Consent Deadline (as defined below) (without giving effect to the prepayment of such Loan Party, in each case, certified as true, accurate and complete and in effect Term B-6 Loans on the date hereof (or a certification that there shall have been no changes Amendment Effective Date pursuant to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectSection 4 below).
(c) The Administrative Agent shall have received received, on behalf of itself, the Lenders and the L/C Issuer on the Amendment Effective Date, a certificate signed by a Responsible Officer written opinion of the Borrower certifying (i) that ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or other counsel reasonably acceptable to the conditions specified in this Section 5 have been satisfiedAdministrative Agent, as counsel for the Loan Parties, and (ii) that there has been no event each local counsel specified on Schedule 1 or circumstance since December 29other counsel reasonably acceptable to the Administrative Agent, 2015 that has had or could be in each case (a) dated the Amendment Effective Date, (b) addressed to the Administrative Agent, the Lenders and the L/C Issuer on the Amendment Effective Date and (c) in form and substance reasonably expected satisfactory to have, either individually or in the aggregate, a Material Adverse EffectAdministrative Agent. Each Loan Party hereby instructs its counsel to deliver such opinions.
(d) The Administrative Agent shall have received from the Borrower a certificate attesting consent fee payable for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Agreement to the Solvency Administrative Agent at or prior to 5:00 p.m., New York City time on February 9, 2012 (the “Consent Deadline” and each such Lender, a “Consenting Lender”) equal to 0.10% of the Loan Parties on a consolidated basis before and after giving effect to this Amendmentsum of (x) the aggregate principal amount of Term Loans, from the chief financial officer if any, held by such Consenting Lender as of the BorrowerConsent Deadline with respect to which a consent was delivered and (y) the aggregate amount of the Revolving Facility Commitments, if any, of such Consenting Lender as of the Consent Deadline with respect to which a consent was delivered.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in from the Borrower an extension fee payable for not less than $18,500,000 in gross cash proceeds the account of each Consenting Lender equal to 0.15% of the aggregate principal amount of Original Maturity Term B Loans held by such Consenting Lender as of the Consent Deadline which such Consenting Lender has elected to extend as Term B-6 Loans (such amount, such Consenting Lender’s “Term B-6 Submitted Amount” of Original Maturity Term B Loans and the Borrower shall receive the proceeds each Consenting Lender electing to extend all or a portion of such issuance no later than the Fifth Amendment Effective Dateits Original Maturity Term B Loans as Term B-6 Loans, an “Extending Term Lender”).
(f) The Administrative Agent shall have received from the list Borrower a conversion fee payable for the account of Restaurants each Consenting Lender equal to be closed 0.15% of the aggregate amount (such Lender’s “Term B-6 Submitted Amount” of Original Maturity Revolving Facility Commitments) of Original Maturity Revolving Facility Commitments (subject to reduction as provided below) held by such Consenting Lender as of 12:00 p.m., New York City time on February 17, 2012 (the “Revolver Election Deadline”) which such Consenting Lender has elected to convert to Term B-6 Loans (each Consenting Lender electing to convert all or refranchised referred a portion of its Original Maturity Revolving Facility Commitments to in the definition of Term B-6 Loans, a “Identified Restaurant Closures/Re-Franchisings (2017Converting Lender”)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received from the Borrower an agreeement, in form and substance reasonably satisfactory extension fee payable for the account of each Consenting Lender equal to the Administrative Agent, acknowledging and agreeing that certain 0.15% of the text shown aggregate amount of Original Maturity Revolving Facility Commitments held by such Consenting Lender as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error Revolver Election Deadline which included at least part of such text Consenting Lender has elected to extend as unmarked text in Exhibit A to the Fourth AmendmentExtended Maturity Revolving Facility Commitments.
(h) The representations and warranties set forth in Section 4 hereof No Revolving Facility Loans shall be true outstanding under the Revolving Facility upon the effectiveness of the Amendment Effective Date (it being understood that any Revolving Facility Loans may be repaid immediately prior to the effectiveness of the Amendment Effective Date and correctthe transactions contemplated hereby and, subject to the terms of the Amended Credit Agreement, Revolving Facility Loans may be drawn under the Amended Credit Agreement following the effectiveness of the Amendment Effective Date and the transactions contemplated hereby).
(i) All The Administrative Agent shall have received all fees and expenses payable thereto on or prior to the Amendment Effective Date and, to the extent invoiced, all other amounts due and owing payable pursuant to the Administrative Agent Loan Documents on or prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable and the Lenders documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid on by the Loan Parties hereunder or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)under any Loan Document.
(j) The Reaffirmation Agreement shall have been executed and delivered by each party thereto.
(k) The Borrower shall have received at least $1,092,541,490.01 of net cash proceeds from the incurrence of the New First Lien Notes ($1,092,541,490.01 of such proceeds, the “Notes Proceeds”).
(l) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and outreceived a completed “Life-of-pocket charges Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each portion of any Mortgaged Property on which any “building” as defined in the Flood Disaster Protection Act of 1973 is located (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each other expenses incurred applicable Loan Party relating thereto) and a copy of, or a certificate as to coverage under, flood insurance policies for any property located in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agenta special flood hazard area, to the extent documented prior required to comply with the Flood Disaster Protection Act of 1973 or on any successor statue thereto as in effect as of the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Amendment Effective Date.
Appears in 1 contract
Conditions. This The effectiveness of this Amendment shall become effective upon is subject to the satisfaction of the following conditions precedent no later than February 9or concurrent on August 2, 2017 2016 (the “Fifth Third Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof Second Amendment Effective Date (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016such Organization Documents were previously delivered to the Administrative Agent) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 4 have been satisfied, and (ii) that there has been no event or circumstance since December 2931, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting the disclosure referred to the Solvency in clause (xiv) of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borroweramendment effected by Section 1.3 hereof.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 3 hereof shall be true and correct.
(if) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Third Amendment Effective Date pursuant to that certain Fifth Third Amendment Fee Letter dated as of February 8, 2017 the Third Amendment Effective Date by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(jg) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j4(g); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Credit Agreement (NOODLES & Co)
Conditions. This Amendment The consummation of the transactions set forth in Sections 3 and 4 of this Agreement shall become effective upon be subject to the satisfaction (or waiver in accordance with Section 7 below) of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed received from Holdings, the Borrower and delivered by each Loan Party, Restatement Lender either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent and the Lenders(which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching favorable written opinion (i) resolutions or other action authorizing addressed to the actions under this Amendment Administrative Agent and the Credit Agreement as amended herebyRestatement Lenders and dated the Restatement Effective Date) of Paul R. Keen, (ii) incumbency certificatescounsel for the Borrower, (iii) certified copies substantially in the form of the Organization Documents of ▇▇▇▇▇▇▇ ▇ ▇▇reto, and covering such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes other matters relating to the Organization Loan Parties, the Loan Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications or the Restatement Transactions as the Administrative Agent may shall reasonably require request. The Borrower hereby requests such counsel to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires deliver such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectopinion.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Borrower certifying (i) that Restatement Transactions and any other legal matters relating to the conditions specified Loan Parties, the Loan Documents or the Restatement Transactions, all in this Section 5 have been satisfied, form and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected substance satisfactory to have, either individually or in the aggregate, a Material Adverse EffectAdministrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate attesting to certificate, dated the Solvency of Restatement Effective Date and signed by the Loan Parties on President, a consolidated basis before and after giving effect to this Amendment, from the chief financial officer Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.01 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form all fees and substance reasonably acceptable other amounts due and payable on or prior to the Administrative AgentRestatement Effective Date, including the Amendment Fees and, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and the Borrower shall receive the proceeds disbursements of such issuance no later than the Fifth Amendment Effective Date.counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document
(f) The Administrative Agent shall have received evidence satisfactory to it that the list Borrower shall have prepaid all Loans, together with all interest thereon, fees and other amounts owed with respect thereto, and terminated all Commitments of Restaurants to be closed or refranchised referred to in all Lenders under the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Existing Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) that are not Restatement Lenders. The Administrative Agent shall have received an agreeement, in form notify the Borrower and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain Restatement Lenders of the text shown as unmarked text in Exhibit A to the Fourth Amendment is notRestatement Effective Date, and has never beensuch notice shall be conclusive and binding. Notwithstanding the foregoing, effectively part the consummation of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties transactions set forth in Section Sections 3 and 4 hereof of this Agreement shall be true and correct.
not become effective unless each of the foregoing conditions is satisfied (i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date waived pursuant to that certain Fifth Amendment Fee Letter dated as of February 8Section 7 below) at or prior to 5:00 p.m., 2017 by and among New York City time, on January 27, 2003 (and, in the Administrative Agent and event such conditions are not so satisfied or waived, the Borrower, Existing Credit Agreement shall have been paid (or shall be paid concurrently with the closing remain in effect without giving effect to any provisions of this AmendmentAgreement).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Argo Tech Corp)
Conditions. This The effectiveness of this Amendment shall become effective upon the satisfaction of is subject to the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This the execution and delivery of this Amendment by the Company, Guarantors, Agents, and each of the Lenders;
(b) the execution and delivery of that certain Sixth Amended and Restated Fee Letter, dated as of the date hereof, by and between the Company and the Administrative Agent, and the payment of all fees required to be paid thereby on or prior to the Tenth Amendment Effective Date;
(c) the truth and accuracy of the representations and warranties contained in Section 4;
(d) Administrative Agent shall have been duly received (i) sufficient copies of each Organizational Document executed and delivered by each Loan Credit Party, as applicable, and, to the Administrative Agent and extent applicable, certified as of a recent date by the Lenders.
(b) The Administrative Agent shall have received certificates executed by appropriate governmental official, for each Lender, each dated the Tenth Amendment Effective Date or a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, recent date prior thereto; (ii) signature and incumbency certificatescertificates of the officers of each such Person executing the Tenth Amendment, the Sixth Amended and Restated Fee Letter or any other Credit Document executed in connection therewith (collectively, the “Tenth Amendment Documents”); (iii) certified copies resolutions of the Organization Board of Directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of the Tenth Amendment Documents to which it is a party or by which it or its assets may be bound as of such Loan Party, in each casethe Tenth Amendment Effective Date, certified as trueof the Tenth Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, accurate and complete and in effect on the organization or formation, each dated a recent date hereof (or a certification that there shall have been no changes prior to the Organization Documents of such Loan Party since August 2, 2016) Tenth Amendment Effective Date; and (ivv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.request;
(e) The Administrative Agent each Credit Party shall have received an executed copy obtained all Governmental Authorizations and all consents of an agreement by a Sponsor Investorother Persons, in form each case that are necessary or advisable in connection with the transactions contemplated by the Tenth Amendment Documents, and substance reasonably acceptable to each of the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which foregoing shall be in form full force and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, effect and in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.;
(hf) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and its counsel shall have received originally executed copies of the Lenders and required favorable written opinions of Winthrop & Weinstine, P.A., counsel for Credit Parties, as to be paid on or before such matters as Administrative Agent may reasonably request, dated as of the Fifth Tenth Amendment Effective Date pursuant and otherwise in form and substance reasonably satisfactory to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Administrative Agent); and
(g) the Borrower, Company shall have been paid (or shall be paid concurrently with all fees, costs and expenses of the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred Agents in connection with this AmendmentAmendment and all transactions contemplated hereby, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges costs and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)expenses of Agents’ counsel.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Speed Commerce, Inc.)
Conditions. This Amendment shall become effective only upon the satisfaction in full of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment Agent shall have been received on or before the Third Amendment Closing Date the following, each in form and substance satisfactory to Agent (and, where indicated, t he applicable Lender) and, unless indicated otherwise, dated as of the Third Amendment Closing Date:
(i) counterparts of this Amendment, duly executed and delivered by each Loan Party, the Administrative Agent Borrowers and the LendersLender Group; and
(ii) such other agreements, instruments, approvals, opinions and other documents as Agent or any Lender may reasonably request.
(b) The Administrative Agent Term B Lender shall have received certificates executed by a Responsible Officer of each Loan Party attaching the Term B Equity Documents (ias hereinafter defined) resolutions or other action authorizing the actions under this Amendment in form and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes substance satisfactory to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectTerm B Lender.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer from the Borrowers, for the benefit of the Borrower certifying (i) Term B Lender, the Third Amendment Commitment Fee and the Third Amendment Use Fee, which Third Amendment Commitment Fee and the Third Amendment Use Fee shall be fully earned as of the date of this Amendment; the parties hereto agree that the conditions specified in this Section 5 have been satisfied, Term B Commitment Fee and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could the Term B Use Fee shall be reasonably expected to have, either individually or in paid from the aggregate, a Material Adverse Effectproceeds of the Term B Loan.
(d) The Administrative Agent several counsel to the members of the Lender Group shall have received a certificate attesting to payment, in immediately available funds, of all accrued and unpaid attorneys fees and expenses constituting Lender Group Expenses incurred in connection with this Amendment and the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.transactions contemplated hereunder or reasonably ancillary hereto;
(e) The Administrative Agent representations and warranties in this Amendment, the Loan Agreement as amended by this Amendment, and the other Loan Documents shall have received an executed copy be true and correct in all respects on and as of an agreement by a Sponsor Investorthe date hereof, in form and substance reasonably acceptable as though made on such date (except to the Administrative Agent, extent that such representations and warranties relate solely to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.an earlier date);
(f) The Administrative Agent No Default or Event of Default shall have received occurred and be continuing on the list date hereof, nor shall result from the consummation of Restaurants to be closed the transactions contemplated herein;
(g) No injunction, writ, restraining order, or refranchised referred to other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein shall have been issued and remain in force by any governmental authority against Borrowers or the definition of “Identified Restaurant Closures/Re-Franchisings Lender Group; and
(2017)” h) All other documents and legal matters in connection with the Credit Agreement which transactions contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)its counsel.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This Amendment The consummation of the transactions set forth in Sections 3 through 5 of this Agreement shall become effective upon be subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed received from the Borrower and delivered by the Required Restatement Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement, which, when taken together, bear the signatures of each Loan Partyof the Borrower, the Administrative Agent and the Required Restatement Lenders.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each Loan Party attaching of (i) resolutions or other action authorizing ▇▇▇▇▇ Day, counsel for the actions under this Amendment Borrower, substantially in the form of Exhibit B-1 and the Credit Agreement as amended hereby, (ii) incumbency certificates▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, (iii) certified copies Chtd., Nevada local counsel for the Borrower, substantially in the form of the Organization Documents of such Loan PartyExhibit B-2 and, in the case of each casesuch opinion required by this paragraph, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes covering such other matters relating to the Organization Loan Parties, the Loan Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications or the Restatement Transactions as the Administrative Agent may Required Restatement Lenders shall reasonably require request. The Borrower hereby requests such counsel to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires deliver such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectopinions.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Borrower certifying (i) that Restatement Transactions and any other legal matters relating to the conditions specified Loan Parties, the Loan Documents or the Restatement Transactions, all in this Section 5 have been satisfied, form and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be substance reasonably expected satisfactory to have, either individually or in the aggregate, a Material Adverse EffectAdministrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate attesting to certificate, dated the Solvency of Restatement Effective Date and signed by the Loan Parties on President, a consolidated basis before and after giving effect to this Amendment, from the chief financial officer Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of, and including the certifications required by paragraph (c) of, Section 4.02 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, all fees and other amounts due and payable in form connection with this Agreement and substance reasonably acceptable the Existing Credit Agreement on or prior to the Administrative AgentRestatement Effective Date, including, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including fees, charges and the Borrower shall receive the proceeds disbursements of such issuance no later than the Fifth Amendment Effective Datecounsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall be satisfied after giving effect to the Restatement Transactions, and in connection therewith the Administrative Agent shall have received (i) a completed Perfection Certificate with respect to the list Loan Parties dated the Restatement Effective Date and signed by an executive officer or Financial Officer of Restaurants the Borrower, together with all attachments contemplated thereby and (ii) to be closed the extent requested by the Administrative Agent, the results of a search of the Uniform Commercial Code (or refranchised referred equivalent) filings made with respect to the Loan Parties (including the Subsidiaries party to the Reaffirmation Agreement) in the definition jurisdictions contemplated by the Perfection Certificate and the copies of “Identified Restaurant Closures/Re-Franchisings the financing statements (2017)” in the Credit Agreement which shall be in form or similar documents) disclosed by such research and substance acceptable evidence reasonably satisfactory to the Administrative AgentAgent that the Liens indicated by such financing statements (or similar documents) are permitted by the Collateral Agreement.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to evidence that the Administrative Agent, acknowledging and agreeing that certain insurance required by Section 5.07 of the text shown as unmarked text Restated Credit Agreement and the Security Documents is in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendmenteffect.
(h) The representations A Reaffirmation Agreement substantially in the form of Exhibit C hereto shall have been executed and warranties set forth in Section 4 hereof shall be true and correctdelivered by each party thereto.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, received a Borrowing Request that satisfies the reasonable fees and disbursements requirements of counsel for Section 2.03 of the Existing Credit Agreement or is otherwise satisfactory to the Administrative Agent, Agent with respect to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).Tranche D
Appears in 1 contract
Sources: Credit Agreement (Cumulus Media Inc)
Conditions. This Amendment shall become effective upon the satisfaction as of the following conditions precedent no later than February 9, 2017 first date (the “Fifth Amendment Effective Date”):) when each of the following conditions shall have been satisfied:
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and (or its counsel) shall have received from each party hereto (including the requisite Lenders.) either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy, portable document format (.pdf) or email transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Administrative Agent no Default or Event of Default shall have received certificates executed by a Responsible Officer occurred and be continuing or shall result from any extension of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect credit requested to be made on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.Fifth Amendment Date;
(c) The the Administrative Agent shall have received a certificate certificate, dated the Fifth Amendment Date and signed by a Responsible Officer of the Borrower certifying (i) that Parent Borrower, confirming compliance with the conditions specified set forth in clause (b) of this Section 5 have 4.1 and that each of the representations and warranties made by any Loan Party contained in Section 3.1 above shall be true and correct on and as of the Fifth Amendment Date after giving effect to the Amendment and to any extension of credit requested to be made on the Fifth Amendment Date with the same effect as though such representations and warranties had been satisfied, made on and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.as of such date;
(d) The to the extent invoiced at least one (1) Business Day prior to the Fifth Amendment Date, the Administrative Agent shall have received all fees and other amounts due and payable to it or its Affiliates on or prior to the Fifth Amendment Date, including, to the extent invoiced, reimbursement or payment of all of such Persons’ reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(e) the Administrative Agent shall have received a certificate attesting written opinion or opinions (addressed to the Solvency Administrative Agent and the Lenders and dated the Fifth Amendment Date) of counsel for the Loan Parties on a consolidated basis before covering such matters relating to the Loan Parties and after giving effect to this Amendment, from the chief financial officer Loan Documents as of the Borrower.Fifth Amendment Date as are customary for financings of this type. The Parent Borrower hereby requests such counsel to deliver such opinions;
(ef) The the Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form such documents and substance certificates as the Administrative Agent or its counsel may reasonably acceptable request relating to the Administrative Agentorganization, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds existence and the Borrower shall receive the proceeds good standing of such issuance no later each Loan Party party hereto (other than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received Subsidiary Borrowers), the list authorization of Restaurants the Transactions to be closed or refranchised referred to consummated in connection with the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form execution and substance acceptable delivery hereof and any other legal matters relating to the Administrative Agent.
Loan Parties party hereto (g) The Administrative Agent shall have received an agreeementother than the Subsidiary Borrowers), the Loan Documents or such Transactions as are customary for financings of this type, all in form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel;
(g) the Administrative Agent shall have received, acknowledging at least 3 days prior to the Fifth Amendment Date, all documentation and agreeing that certain other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, with respect to the Loan Parties as of the text shown as unmarked text in Exhibit A Fifth Amendment Date that has been reasonably requested by the Administrative Agent at least 10 days prior to the Fourth Fifth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.Date;
(h) The representations and warranties set forth all actions necessary to establish that the Administrative Agent will have a perfected first priority security interest in Section 4 hereof shall be true and correct.the Collateral (subject to Liens permitted under the Credit Agreement as amended hereby); and
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed received, for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this the account of the Term B Lenders immediately prior to the Amendment, includingall accrued interest and fees on the Term B Loans outstanding as of the Fifth Amendment date, without limitationand if applicable, the reasonable fees and disbursements Term B Lenders shall have received any payments of counsel for the Administrative Agent, to the extent documented prior to or principal on the date hereof (for Term B Loans from the avoidance other applicable Term B Lenders to affect the provisions of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)2(b) hereto.
Appears in 1 contract
Conditions. This Amendment Agreement and the 2012 Incremental Term Loan Commitments herein provided shall become effective upon the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This Amendment The representations and warranties in Section 4 of this Agreement shall have been duly executed be true and delivered by each Loan Party, the Administrative Agent and the Lenderscorrect.
(b) The Administrative Agent ▇▇▇▇▇ Fargo Securities, LLC (“▇▇▇▇▇ Fargo Securities”) shall have received certificates executed by a Responsible Officer payment in immediately available funds of each Loan Party attaching an arrangement fee (iwhich fee the Company agrees is fully earned and nonrefundable) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete for its own account and in effect on an amount agreed upon by the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) Company and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect▇▇▇▇▇ Fargo Securities.
(c) The Administrative Agent ▇▇▇▇▇ Fargo Securities shall have received a certificate signed for the benefit of each Joining Lender payment in immediately available funds of an upfront fee (which fee the Company agrees is fully earned and nonrefundable) in an amount agreed upon by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, Company and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect▇▇▇▇▇ Fargo Securities.
(d) The Administrative Agent shall have received a certificate attesting (i) executed counterparts of this Agreement, sufficient in number for distribution to the Solvency Administrative Agent, each Required Lender, each Joining Lender and the Company and (ii) a Note executed by the Company in favor of the Loan Parties on each Joining Lender requesting a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the BorrowerNote.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investorsuch documents, in form instruments, certificates, projections and substance reasonably acceptable opinions relating to the 2012 Incremental Term Loan that are relevant to the 2012 Incremental Term Loan and comparable to those delivered under Sections 4.01(a)(iv) (secretary’s certificates, however, may certify that there have been no changes to documents previously delivered to the Administrative AgentAgent under the Original Credit Agreement rather than attaching such documents), 4.01(a)(v), 4.01(a)(vi), 4.01(a)(viii) (except that any certification regarding the conditions set forth in Sections 4.01(a) and 4.01(b) of the Original Credit Agreement having been satisfied shall instead reference the conditions set forth in this Section 5 having been satisfied), 4.01(a)(ix), 4.01(a)(xii), 4.01(b), 4.01(c), 4.01(e) and 4.01(f) of the Original Credit Agreement.
(f) Since December 31, 2011, nothing shall have occurred (and neither the Administrative Agent nor any of the Required Lenders or Joining Lenders shall have become aware of any facts, conditions or other information not previously known) which the Administrative Agent or the Required Lenders or Joining Lenders shall determine has had, or believe could reasonably be expected to purchase Qualified Securities in have, a Material Adverse Effect.
(g) On the Borrower for Restatement Effective Date, there shall not less than $18,500,000 in gross cash proceeds and exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon the Borrower shall receive transactions contemplated by the proceeds of such issuance no later than Loan Documents to occur on or prior to the Fifth Amendment Restatement Effective Date.
(fh) The Administrative Agent shall have received On the list of Restaurants to be closed Restatement Effective Date, no litigation by any entity (private or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which governmental) shall be in form and substance acceptable pending or threatened (i) with respect to any Loan Document or the Administrative Agent.
transactions contemplated thereby or (gii) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to which the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A Required Lenders or the Joining Lenders shall determine could reasonably be expected to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite have a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth AmendmentMaterial Adverse Effect.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This Amendment shall become effective upon 3.1 The Buyer’s obligation to purchase the Sale Shares at Completion may only occur after the satisfaction or waiver of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):conditions:
(a) This Amendment shall have been a resolution to approve the purchase by the Buyer of the Sale Shares being duly executed passed at a general meeting of the shareholders of Randgold so as to fully satisfy the Listing Rules, laws and delivered by each Loan Party, regulations to which Randgold is subject (if required) (the Administrative Agent and the Lenders.“Randgold Shareholders Approval”);
(b) The Administrative Agent shall have received certificates executed approval by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under South African Reserve Bank for AngloGold to enter into this Amendment agreement and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies purchase by the Buyer of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on Sale Shares (the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.“AngloGold SARB Approval”);
(c) The Administrative Agent shall have received a certificate signed resolution to approve (a) the sale by a Responsible Officer the Seller of the Borrower certifying Sale Shares, (b) the signature of the Restated JV Contract, (c) the adoption of the Restated Articles and (d) voting in favour of the KIBALI Resolution being duly passed by the Board of Directors of OKIMO and ratified by the General Meeting of the OKIMO in accordance with applicable laws and the by-laws of the Seller (the “OKIMO Corporate Approval”) and delivered to the Buyer within 10 Business Days of the date hereof;
(d) the signature and delivery, by the Government to the Buyer and the Principal Shareholders, of duly executed copies of the Accord and Government Protocol; all such documents to be delivered within 10 Business Days of the date hereof
(e) the transmission to the Buyer and the Principal Shareholders of a notification letter from the Government regarding the meeting of Cabinet at which note was taken of the transaction, its terms and the revised arrangements with OKIMO and it was confirmed (i) that it was being effected in accordance with the law; (ii) that the Sale Price is at a premium to that implied by the cash offer for shares of Moto Goldmines and (iii) that the DRC Government had benefited from independent financial advice from BNP Paribas in relation to the transaction ;this letter to be delivered within 10 Business Days of the date hereof;
(f) the passing of the KIBALI Resolution in the form attached as set out in Appendix 4 within 10 Business Days of the date hereof;
(g) the signature and delivery of a duly executed copy of Restated JV Contract by OKIMO to the Buyer and the Principal Shareholders;
(h) the renewal of those Exploitation Permits expiring in 2014 pursuant to the Government Protocol; it being understood that the Buyer shall be entirely responsible for and take charge of all the measures, steps, costs and expenses in relation to the application for renewal; and
(i) the fact that representations and warranties of the Seller described in clause 7.1 are authentic and accurate at Completion. The Parties agree that the conditions set forth in clauses 3.1(a) to (i) above are for the sole benefit of the Buyer, who may agree to waive such conditions in its sole discretion. The Buyer shall promptly notify the parties hereto in the event it elects to waive any of the above conditions.
3.2 The Seller’s obligation to sell the Sale Shares at Completion will be subject to the satisfaction or waiver of the following conditions:
(a) the passing of the OKIMO Corporate Approval within 10 Business Days of the date hereof ;
(b) the passing of the KIBALI Resolution within 10 Business Days of the date hereof;
(c) the signature and delivery of a duly executed copy of Restated JV Contract by the Buyer, Border and Moto Goldmines to the Seller;
(d) the fact that representations and warranties of the Buyer described in clause 7.3 are authentic and accurate at the date of Completion. The Parties agree that the conditions described above in clauses 3.2 (a) to (d) are for the benefit of the Seller, which has the possibility to agree to waive these conditions at its own discretion. The Seller shall swiftly notify the parties hereto in case that it would opt to waive any of the conditions above.
3.3 If the conditions specified in this Section 5 clauses 3.1 and 3.2 have not all been satisfied, and satisfied (iior waived as appropriate) that by the date indicated in each condition (unless there has been no event an agreement between the Buyer and the Seller for an extension of such date) or circumstance since December 29where a date is not indicated before 5.30 p.m. London time on the Long Stop Date, 2015 this agreement shall lapse and none of the parties to this agreement shall have any claim against the other parties under this agreement except in relation to any breach hereof occurring before that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effecttime and date.
(d) The Administrative Agent shall have received a certificate attesting 3.4 Subject to the Solvency Randgold board’s fiduciary duties, Randgold shall use its Reasonable Endeavours prior to the Long Stop Date so that the condition provided for in clause 3.1(a) above is satisfied at or before 5:30 pm, London Time on the Long Stop Date (including the posting of a class 1 circular to shareholders of Randgold with a recommendation from the board of Randgold to vote in favour of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer purchase of the BorrowerSale Shares contemplated herein) and Randgold shall notify the parties hereto of the satisfaction of such condition in writing.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable 3.5 Subject to the Administrative AgentAngloGold board’s fiduciary duties, AngloGold shall use its Reasonable Endeavours prior to purchase Qualified Securities the Long Stop Date to procure that the above condition in clause 3.1(b) which AngloGold is responsible to obtain is satisfied at or before 5:30 pm, London Time on the Borrower for not less than $18,500,000 in gross cash proceeds Long Stop Date and AngloGold shall notify the Borrower shall receive parties hereto of the proceeds satisfaction of such issuance no later than the Fifth Amendment Effective Datecondition in writing.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable 3.6 Subject to the Administrative Agent.
(gOKIMO board’s fiduciary duties, OKIMO shall use its Reasonable Endeavours to procure that the above conditions in clause 3.1(c) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory which OKIMO is responsible to the Administrative Agent, acknowledging and agreeing that certain obtain is satisfied within 10 Business Days of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for and OKIMO shall notify the avoidance parties hereto of doubtthe satisfaction of said condition in writing. It is understood that OKIMO will not assume any responsibility if the OKIMO board does not adopt the resolution.
3.7 Each of Randgold, a summary statement AngloGold and OKIMO confirms that, at the date hereof, they are not aware of such fees, charges and disbursements shall be sufficient documentation for the any matter that would cause them to not comply with their obligations set forth out in this Section 5(j); provided that supporting documentation for clauses 3.4, 3.5 or 3.6 respectively.
3.8 For the sake of clarity, the Restated JV Contract shall not enter into force prior to the date of Completion, the parties continuing to be governed by the Original Contract of Association until such summary statement is provided promptly thereafter)date.
Appears in 1 contract
Conditions. This Amendment shall become effective upon The effectiveness of this Agreement (including the obligation of the Lender to make the Loan) is subject to the satisfaction of the following conditions precedent no later than February 9(and, 2017 (in the “Fifth Amendment Effective Date”case of each document specified in this Section to be received by the Lender, such document shall be in form and substance satisfactory to the Lender in its sole discretion):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the The Administrative Agent and the LendersLender shall have received from each party hereto counterparts (in such number as may be requested by the Administrative Agent or the Lender, as applicable) of this Agreement signed on behalf of such party.
(b) The Administrative Agent and the Lender shall have received certificates from each party thereto duly executed counterparts (in such number as may be requested by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party or the Lender, as applicable) of the Collateral Documents and, except in cases where no signature is duly organized or formedrequired, the other Collateral Documents together with any other documents, and that each Loan Party is validly existinginstruments required to perfect or evidence the Lender’s first priority security interest in and liens on the Collateral (including, without limitation, all applicable certificates evidencing pledged capital stock, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in good standing the applicable government UCC filing offices, all real property (including oil and qualified gas property) mortgages to engage be filed in business in each jurisdiction where its ownershipthe applicable government mortgage filing offices, lease or operation of properties all intellectual property security agreements to be filed with the United States Copyright Office or the conduct of its business requires such qualificationUnited States Patent and Trademark Office, except as applicable, and all deposit account and securities account control agreements) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing. In connection with the execution and delivery of the Collateral Documents and other documents described above, the Lender shall be reasonably satisfied that failure to do so could not reasonably the Collateral Documents create first priority Liens that may be expected to have a Material Adverse Effectperfected upon recordation of properly completed financing statements and the Collateral Documents in the appropriate filing offices therefor (except Liens permitted by Section 6.03 may exist).
(c) The Administrative Agent and the Lender shall have received a certificate signed by a Responsible Officer copies of all material regulatory, governmental, third party and other approvals, acknowledgements, directions, consents and agreements required as of the Borrower certifying (i) that Closing Date hereof in order for each Credit Party to enter into the conditions specified in this Section 5 have been satisfied, Financing Documents to which it is a party and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in perform their respective obligations thereunder and for the aggregate, a Material Adverse Effectconsummation of the transactions contemplated under the Financing Documents.
(d) The Administrative Agent and the Lender shall have received a certificate attesting of a Responsible Officer of each Credit Party setting forth (i) resolutions of its board of directors or other appropriate governing body with respect to the Solvency authorization of such Credit Party, as applicable, to execute and deliver the Loan Parties on Financing Documents to which it is a consolidated basis before party and after to enter into the Transactions, (ii) the officers of such Credit Party, as applicable, (x) who are authorized to sign the Financing Documents to which such Credit Party, as applicable, is a party and (y) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving effect to notices and other communications in connection with this AmendmentAgreement and the transactions contemplated hereby, from (iii) specimen or genuine signatures of such authorized officers, and (iv) the chief financial officer articles or certificate of the Borrowerincorporation and by-laws or other applicable Organizational Documents of such Credit Party, as applicable, certified as being true and complete.
(e) The Administrative Agent and the Lender shall have received an executed copy certificates of an agreement the appropriate state agencies, as requested by a Sponsor Investorthe Lender, in form and substance reasonably acceptable with respect to the Administrative Agentexistence, qualification and good standing of each Credit Party in each jurisdiction where any such Credit Party is organized or qualified to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Datedo business.
(f) The Administrative Agent Lender shall have received a Solvency Certificate from the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be Borrower in form and substance acceptable reasonably satisfactory to the Administrative AgentLender.
(g) The Administrative Agent and the Lender shall have received an agreeement, a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent, acknowledging Lender certifying that (i) all representations and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part warranties of the Credit Agreement, despite a scrivener’s error Parties set forth in this Agreement are true and correct in all material respects (unless already qualified by materiality in which included at least part case such applicable representation and warranty shall be true and correct in all respects) and (ii) no Default or Event of such text as unmarked text in Exhibit A to the Fourth AmendmentDefault exists.
(h) The representations Administrative Agent and warranties set forth in Section 4 hereof the Lender shall be true and correcthave received a Notice of Borrowing.
(i) All fees and expenses due and owing The Lender shall have received a pro forma balance sheet of the Borrower after giving effect to the Administrative Agent Transactions (it being understood and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to agreed that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid this clause (or i) shall be paid concurrently deemed satisfied by the inclusion in a registration statement on Form S-4 or a proxy statement for Flame Acquisition Corp. filed with the closing of this AmendmentSEC).
(j) The No later five (5) Business Days prior to the Closing Date, each of the Administrative Agent and the Lender shall have been reimbursed for received all reasonable and documented fees and out-of-pocket charges documentation and other expenses incurred in connection with this Amendmentinformation required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the reasonable fees PATRIOT Act.
(i) The PSA is in full force and disbursements effect and the “Closing” thereunder shall be consummated simultaneously with the Closing Date in accordance with the terms described in the PSA, and (ii) the Plains PSA is in full force and effect and the “Closing” thereunder shall be consummated prior to, or substantially simultaneously with, the Closing Date in accordance with the terms described in the Plains PSA.
(l) All fees, costs and expenses (including legal fees) payable to or on behalf of the Lender or the Administrative Agent that are due and payable on the Closing Date to the extent invoiced at least two (2) Business Days prior to the Closing Date, shall have been received.
(m) The Administrative Agent, for the benefit of the Secured Parties, shall have received customary legal opinions from ▇▇▇▇▇▇▇▇▇ LLP as New York special legal counsel for the Administrative AgentBorrower and (ii) Stoel Rives LLP, to the extent documented prior to or on the date hereof (as California special legal counsel for the avoidance Borrower.
(n) No Default or Event of doubtDefault shall have occurred and be continuing.
(o) All representations and warranties made by any Credit Party contained herein or in the other Financing Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date (except where such representations and warranties expressly relate to an earlier date, a summary statement in which case such representations and warranties shall have been true and correct in all material respects as of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafterearlier date).
(p) The Lender shall have received evidence reasonably satisfactory to it that the Borrower and its Subsidiaries have cash and Cash Equivalents that would not appear as “restricted” on a consolidated balance sheet of the Borrower of not less than One Hundred Fifty Million Dollars ($150,000,000).
(q) The Lender shall have received such other documents as the Lender may request in its sole discretion.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Sable Offshore Corp.)
Conditions. This Amendment shall become effective upon as of the satisfaction first date prior to April 12, 2012 (the “Amendment Effective Date”) on which each of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):is satisfied:
(a) This Amendment the Administrative Agent shall have been duly executed and delivered by received from each Loan Party, party hereto either (i) a counterpart of this Amendment signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission) that such party has signed a counterpart of this Amendment;
(b) the Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders.Incremental Revolving Lenders and the Issuing Bank and dated the Amendment Effective Date) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, covering such matters relating to the Loan Parties, this Amendment, the other Loan Documents and the Guarantees and security interests under the Security Documents (including in relation to the Secured Obligations attributable to the Incremental Revolving Commitments) as the Administrative Agent shall reasonably request (and the Company hereby requests such counsel to deliver such opinions);
(bc) The the Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications certificates as the Administrative Agent may reasonably require request relating to evidence that the organization, existence and good standing of each Loan Party is duly organized or formedParty, the authorization of the transactions contemplated hereby and that each any other legal matters relating to the Loan Party is validly existingParties, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties the Loan Documents or the conduct of its business requires such qualificationtransactions contemplated hereby, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, all in form and substance reasonably satisfactory to the Administrative Agent, acknowledging ;
(d) the conditions set forth in paragraphs (a) and agreeing that certain (b) of Section 4.02 of the text shown Credit Agreement shall be satisfied on and as unmarked text in Exhibit A to of the Fourth Amendment is notEffective Date, and has never beenthe Administrative Agent shall have received a certificate, effectively part dated the Amendment Effective Date and signed by the chief executive officer or the chief financial officer of the Company, confirming compliance with such conditions;
(e) on the Amendment Effective Date and immediately after giving effect to any Borrowings and/or repayments of Revolving Loans and other extensions of credit on such date and the use of proceeds of any such Borrowings, the Company shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 of the Credit Agreement on a pro forma basis in accordance with Section 1.04(b) of the Credit Agreement, despite and the Administrative Agent shall have received a scrivener’s error certificate dated the Amendment Effective Date and executed by a Financial Officer of the Company to such effect, together with reasonably detailed calculations demonstrating such compliance;
(f) the Company shall have made the prepayments of Loans and payments of accrued interest on Loans, if any, required to be made on the Amendment Effective Date by Section 1(c) hereof, and shall, to the extent invoiced, have made any payments required by Section 2.15 of the Credit Agreement in connection therewith;
(g) each Loan Party shall have executed and delivered to the Administrative Agent a written instrument reasonably satisfactory to the Administrative Agent pursuant to which included at least part it confirms that it consents to this Amendment and the Incremental Commitments provided for herein and that the Security Documents to which it is party will continue to apply in respect of the Credit Agreement, as amended hereby, and the obligations of such text as unmarked text in Exhibit A to the Fourth Amendment.Loan Party;
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for received, to the extent invoiced, reimbursement or payment of all reasonable and documented fees and out-of-pocket charges expenses required to be reimbursed or paid by the Company under the Credit Agreement or under Section 6 hereof; and
(i) The Incremental Revolving Lenders shall have received all documentation and other expenses incurred in connection with this Amendmentinformation required by bank regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, includingincluding the USA PATRIOT Act. The Administrative Agent shall notify the Company and the Incremental Revolving Lenders of the Amendment Effective Date, without limitationand such notice shall be conclusive and binding. Notwithstanding the foregoing, the reasonable fees and disbursements obligations of counsel for the Administrative Agent, Incremental Revolving Lenders to provide the extent documented Incremental Revolving Commitments hereunder shall not become effective unless each of the foregoing conditions shall have been satisfied at or prior to or 5:00 p.m., New York City time, on the date hereof (for the avoidance of doubtApril 12, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)2012.
Appears in 1 contract
Sources: Incremental Facility Agreement (Vishay Intertechnology Inc)
Conditions. This Amendment shall become effective upon The effectiveness of the consent set forth in §1 and the amendments set forth in §2 are subject to the satisfaction of the following conditions precedent no later than February 9, 2017 or concurrent (the date of satisfaction of such conditions, the “Fifth Amendment Effective Date”):
(a) This Amendment The Administrative Agent shall have been duly received a fully executed copy of a consent and delivered amendment to the Bond Facility Agreement, permitting the Specified Change of Control and otherwise on terms permitted by each the Loan PartyDocuments, the Administrative Agent certified by a Financial Officer as being complete and the Lenderscorrect.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies evidence reasonably satisfactory to it of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer consummation of the Borrower certifying (i) that Acquisition prior to or substantially contemporaneously with the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(hc) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(id) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth date hereof in connection with this Amendment Effective Date pursuant in accordance with Credit Agreement shall have been paid.
(e) the Borrower shall have paid, by wire transfer of immediately available funds, to the Administrative Agent, for the account of each Lender that certain Fifth delivers a signed counterpart of this Amendment Fee Letter dated as of February 8prior to 3:00 p.m. (New York City time) on June 13, 2017 (the “Signing Date”), a fee in an aggregate amount equal to 0.25% of the outstanding principal amount of the Tranche B Term Loans and Revolving Commitments held by and among such Lender on the Signing Date. For purposes of determining compliance with the conditions specified in this Section 6, each Lender that has signed this Amendment shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender unless the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with received written notice from such Lender prior to the closing of this Amendment).
(j) proposed Effective Date, specifying its objection thereto. The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitationnotify the Parent, the reasonable fees Borrower and disbursements the Lenders of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Effective Date.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
Conditions. This Amendment shall become effective only upon the ---------- satisfaction in full of the following conditions precedent no later than February 9, 2017 (the “Fifth first date upon which all such conditions have been satisfied being herein called the "Second Amendment Effective Date”"):
(a) This The representations and warranties contained in this Amendment and in Article VI of the Financing Agreement and each other Loan Document shall be correct on and as of the Second Amendment Effective Date as though made on and as of such date (except where such representations and warranties relate to an earlier date in which case such representations and warranties shall be true and correct as of such earlier date); no Event of Default or Potential Default shall have been occurred and be continuing on the Second Amendment Effective Date or result from this Amendment becoming effective in accordance with its terms.
(b) The Agent shall have received counterparts of this Amendment, duly executed and delivered by each Loan Partythe Borrowers, the Administrative Agent Guarantors and the Lenders.
(bc) The Administrative Agent shall have received certificates the New Notes (the New Notes together with this Amendment, the "Amendment Documents"), duly executed by each of the Borrowers.
(d) The Borrowers shall pay to the Agent for the account of the Lenders in accordance with the Lenders' respective Pro Rata Shares (or the Agent may charge the Loan Account pursuant to Section 4.02) a Responsible Officer non-refundable amendment fee of $125,000, which fee is earned, in full, on the date hereof.
(e) The Agent shall have received a copy of the resolutions adopted by the Board of Directors or other governing body of each Loan Party attaching (i) resolutions or other action authorizing of the actions under this Amendment Borrowers and the Credit Corporate Guarantors, certified as of the Second Amendment Effective Date by authorized officers thereof, authorizing (A) the transactions contemplated by the Amendment Documents, and the Financing Agreement as amended hereby, and (iiB) incumbency certificatesthe execution, (iii) certified copies delivery and performance by each of the Organization Borrowers and the Corporate Guarantors of the Amendment Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or to which it is a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectparty.
(cf) The Administrative Agent shall have received a certificate signed by a Responsible Officer of authorized officers of the Borrower Borrowers and Corporate Guarantors certifying (i) that the conditions specified in this Section 5 have been satisfiednames and true signatures of the officers of the Borrowers and the Corporate Guarantors authorized to sign the Amendment Documents, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in together with evidence of the aggregate, a Material Adverse Effectincumbency of such authorized officers.
(dg) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from chief executive officer or the chief financial officer of each of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form Borrowers and substance reasonably acceptable Corporate Guarantors certifying as to the Administrative Agent, to purchase Qualified Securities matters set forth in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds subsection (a) of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendmentthis Section 13.
(h) The representations and warranties set forth in Section 4 hereof All legal matters incident to this Amendment shall be true and correct.
(i) All fees and expenses due and owing satisfactory to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)its counsel.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Financing Agreement (Happy Kids Inc)
Conditions. This Amendment The consummation of the transactions set forth in Sections 3 through 9 of this Effectiveness Agreement shall become effective upon be subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Administrative Agent shall have been duly executed received, on behalf of itself, the Lenders and delivered by the Issuing Bank, favorable written opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., Senior Vice President and General Counsel of the Borrower, substantially to the effect set forth in Exhibit B-1, (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for Holdings and the Borrower, substantially to the effect set forth in Exhibit B-2, (iii) Fiddler, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Puerto Rican counsel for Holdings and the Borrower, substantially to the effect set forth in Exhibit B-3 and (iv) Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC, special counsel for the Borrower, substantially to the effect set forth in Exhibit B-4, in each case dated the Effectiveness Date, addressed to the Administrative Agent, the Lenders and the Issuing Bank, and covering such other matters relating to the Loan Party, Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the LendersBorrower hereby request such counsel to deliver such opinions.
(b) The Administrative Agent shall have received certificates executed by (i) a Responsible Officer copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party attaching (i) resolutions Party, certified as of a recent date by the Secretary of State or comparable official of the state or other action authorizing jurisdiction of its organization, and, except with respect to jurisdictions that do not issue such certificates for persons organized in the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents manner of such Loan Party, in a certificate as to the good standing of each caseLoan Party as of a recent date, certified as true, accurate from such Secretary of State or other official; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effectiveness Date and certifying (A) that attached thereto is a true and complete and copy of the by-laws of such Loan Party as in effect on the Effectiveness Date and at all times since a date hereof (or a certification that there shall have been no changes prior to the Organization Documents date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of such Loan Party have not been amended since August 2the date of the last amendment thereto shown on the certified copy thereof furnished pursuant to clause (i) above, 2016and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents and certifications as the Lenders, the Issuing Bank or the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectrequest.
(c) The Administrative Agent shall have received a certificate certificate, dated the Effectiveness Date and signed by a Responsible Financial Officer of the Borrower certifying (i) that Borrower, confirming compliance with the conditions specified precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Restated Credit Agreement and the conditions set forth in paragraphs (e), (f), (g) and (m) of this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect10.
(d) The Administrative Agent shall have received a certificate attesting all Fees and other amounts due and payable on or prior to the Solvency Effectiveness Date under the Existing Credit Agreement or Section 5 or 9(a)(i) of this Effectiveness Agreement.
(e) The Group Equity Contribution shall have been or shall simultaneously with the initial Credit Event be completed; the issued and outstanding Equity Interests of Group shall be owned as set forth on Schedule 10(e) hereto.
(f) The Holdings Equity Contribution shall have been or shall simultaneously with the initial Credit Event be completed.
(g) The Asset Purchase shall have been, or simultaneously with the initial Credit Event shall be, consummated in accordance with the Asset Purchase Agreement and applicable law, without any amendment to or waiver of any material terms or conditions of the Asset Purchase Agreement not approved by the Administrative Agent. The Lenders and the Issuing Bank shall have received executed copies of the Asset Purchase Agreement and all certificates, opinions and other documents delivered in connection therewith, all certified by a Financial Officer as complete and correct.
(h) Each of the Security Documents shall have been amended to the extent necessary or advisable in the judgment of the Collateral Agent in view of the Transactions. The Collateral Requirement shall be satisfied. Substantially all the economic interest in the Puerto Rican Subsidiary shall be represented by the non-voting capital stock thereof.
(i) The Collateral Agent shall have received the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties on a consolidated basis before and after giving effect to this Amendmentin the states (or other jurisdictions) in which each such person is organized, from the chief financial officer executive office of each such person is located, any offices of such persons in which records have been kept relating to accounts receivable and the other jurisdictions in which Uniform Commercial Code filings (or equivalent filings) are to be made pursuant to clause (b) of the definition of "Collateral Requirement", together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 of the Restated Credit Agreement or have been released.
(j) The Collateral Agent shall have received a Perfection Certificate dated the Effectiveness Date and duly executed by a Responsible Officer of the Borrower.
(ek) The Subsidiary Guarantee Agreement shall have been amended to the extent necessary or advisable in the judgment of the Collateral Agent in view of the Transactions. The Guarantee Requirement shall be satisfied.
(l) All requisite Governmental Authorities (including the FCC and any antitrust or banking authorities in the Applicable Jurisdictions or any other relevant jurisdiction) and third parties shall have approved or consented to the Transactions to the extent required, in each case to the extent failure to obtain such approvals or consents could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, and there shall be no action by any Governmental Authority, actual or threatened, that has a reasonable likelihood of materially restraining, preventing or imposing burdensome conditions on the Transactions or the other transactions contemplated hereby (it being understood that FCC approval shall be deemed to have been obtained upon receipt of an initial favorable ruling from the FCC unless the Administrative Agent in good faith believes that it is reasonably uncertain that such initial ruling will become final and nonappealable).
(m) The terms on which the Effectiveness Date Transactions shall have been completed and the capitalization (including Indebtedness) of Group, Holdings and the Borrower after giving effect to the Effectiveness Date Transactions shall be consistent in all material respects with the pro forma financial statements and projections provided to the Lenders prior to the date hereof (including all updates of such projections provided to the Lenders prior to the date hereof), giving effect to the assumptions on which such projections are based.
(n) The Administrative Agent shall have received an executed copy evidence that the insurance required by Section 5.01 and the Security Documents is in effect. Notwithstanding the foregoing, the obligations of an agreement by a Sponsor Investorthe Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.08 of the Restated Credit Agreement) at or prior to 5:00 p.m., New York City time, on June 1, 2001 (and, in form and substance reasonably acceptable the event such conditions are not so satisfied or waived, the obligations of the Lenders to complete the Administrative Agent, to purchase Qualified Securities in the Borrower transactions provided for not less than $18,500,000 in gross cash proceeds and the Borrower herein shall receive the proceeds of terminate at such issuance no later than the Fifth Amendment Effective Date.
(f) time). The Administrative Agent shall have received notify the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent Company and the Lenders of the Effectiveness Date, and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or such notice shall be paid concurrently with the closing of this Amendment)conclusive and binding.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This The obligation of the Lenders and the Agent to execute and to perform this First Amendment shall become effective upon the be subject to full satisfaction of the following conditions precedent no later than February 9, 2017 (on or before the “Fifth First Amendment Effective Date”)::
(a) This Amendment The Agent shall have been duly executed received copies, certified as of the First Amendment Effective Date by the Secretary or Assistant Secretary of the Borrower, of such corporate documents or resolutions of the Borrower as the Lenders or the Agent may request evidencing necessary corporate action by the Borrower with respect to this First Amendment and all other agreements or documents delivered by each Loan Party, pursuant hereto as the Administrative Lenders or the Agent and the Lendersmay request.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate certificate, in form and substance satisfactory to the Agent, signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower, stating that on the First Amendment Effective Date no Default or Unmatured Default has occurred and is continuing.
(c) The Agent shall have received the pro forma financial statements required to be delivered pursuant to Section 7.3(G)(iii)(d) of the Credit Agreement.
(d) This First Amendment shall have been (i) duly executed and delivered by the Borrower to the Lenders and the Agent, (ii) duly executed and delivered to the Lenders and the Agent by Refinishers Warehouse, Inc., a Michigan corporation, with respect to the Consent and Reaffirmation provided herein, and (iii) executed by the Lenders and the Agent.
(e) The Administrative Agent Borrower shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees paid all costs and expenses due and owing to the Administrative Agent and incurred by the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently in connection with the negotiation, preparation and closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all First Amendment and the other documents and agreements delivered pursuant hereto, including the reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendmentof Baker & Daniels, including, without limitation, the reasonable fees and disbursements of special counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Agent.
Appears in 1 contract
Sources: Credit Agreement (Finishmaster Inc)
Conditions. This Amendment The obligations of the Lenders to make Loans on the Effective Date shall not become effective upon until the satisfaction time and date on which each of the following conditions precedent no later than February 9, 2017 is satisfied (the “Fifth Amendment Effective Date”or waived in accordance with Section 9.02):
(a) This Amendment The Administrative Agent shall have been received a counterpart of this Agreement, duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.party hereto;
(b) The Administrative Agent shall have received certificates the Guaranty, duly executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.party thereto;
(c) The Administrative Agent shall have received received, for each Loan Party, a certificate signed by a Responsible Officer of good standing (or the Borrower certifying equivalent) from the appropriate governing agency of such Loan Party’s jurisdiction of organization (i) that to the conditions specified extent the concept of good standing is applicable in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.such jurisdiction);
(d) The Administrative Agent shall have received a certificate, dated the Effective Date, of the Secretary or an Assistant Secretary of each Loan Party (or, if such Loan Party does not have a secretary or assistant secretary, any other Person duly authorized to execute such a certificate attesting on behalf of such Loan Party) certifying as to (i) specimen signatures of the Solvency persons authorized to execute Loan Documents to which such Loan Party is a party, (ii) copies of such Loan Party’s constituent organizational documents, and (iii) the resolutions of the board of directors or other appropriate governing body of such Loan Party authorizing the execution, delivery and performance of the Loan Parties on Documents to which it is a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.party;
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable customary favorable written legal opinion dated the Effective Date (addressed to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds Agent and the Borrower shall receive Lenders) of (i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the proceeds of such issuance no later than Loan Parties, (ii) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, P.C., Nevada counsel for the Fifth Amendment Effective Date.Loan Parties and (iii) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, New Jersey counsel for the Loan Parties;
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable at least three Business Days prior to the Administrative Agent.Effective Date all documentation and other information regarding the Loan Parties required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act to the extent reasonably requested at least ten Business Days prior to the Effective Date;
(g) At the time of and upon giving effect to the Borrowing of the Loans on the Effective Date, the representations and warranties in this Agreement shall be true and correct, in all material respects (and in all respects if already qualified by materiality), except to the extent any such representations or warranties are limited to a specific date, in which case, such representations and warranties are accurate in all material respects as of such specific date (and in all respects if already qualified by materiality);
(h) At the time of and upon giving effect to the Borrowing of the Loans on the Effective Date, there shall not exist any Default or Event of Default;
(i) The Administrative Agent shall have received an agreeementa certificate, in form dated the Effective Date and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain signed by a Responsible Officer of the text shown Borrower, confirming compliance as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text Effective Date with the conditions contained in Exhibit A to the Fourth Amendment.
paragraphs (g) and (h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).Article IV;
(j) The Administrative Agent shall have been reimbursed for received a solvency certificate from the chief financial officer of the Borrower substantially in the form of Exhibit E hereto;
(k) The Administrative Agent shall have received all reasonable and documented fees and out-of-pocket charges and other costs, fees, expenses incurred in connection with this Amendment, (including, without limitation, the reasonable legal fees and disbursements of counsel for expenses) to the extent invoiced at least two Business Days prior to the Effective Date and the fees contemplated by the Fee Letters payable to the Bookrunners, the Administrative AgentAgent or the Lenders shall have been paid on or prior to the Effective Date, in each case, to the extent documented required by the Fee Letters or the Loan Documents to be paid on or prior to or the Effective Date;
(l) The Refinancing shall have occurred substantially concurrently with the making of the Loans on the date hereof, and the Administrative Agent shall have received customary evidence thereof;
(m) Since September 30, 2018, there shall not have occurred a Material Adverse Change; and
(n) The Administrative Agent shall have received a duly executed Borrowing Request in compliance with Section 2.03 hereof (for or, in each case, such other notice or request reasonably satisfactory to the avoidance Administrative Agent. The Administrative Agent shall notify the Borrower and the Lenders of doubtthe Effective Date, a summary statement of and such fees, charges and disbursements notice shall be sufficient documentation for conclusive and binding, For the obligations set forth purposes of determining whether the conditions precedent specified in this Section 5(j); provided that supporting documentation for Article IV have been satisfied, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with each document or other matter required thereunder to be consent to, approved by, acceptable to or satisfactory to the Lenders, unless the Administrative Agent shall have received notice from such summary statement is provided promptly thereafter)Lender prior to the Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions. This Amendment shall become effective upon The obligations of the Lenders to make Loans on the Effective Date are subject, at the time of the making of such Loans to satisfaction of the following conditions precedent no later than February 9, 2017 (on or prior to the “Fifth Amendment Effective Date”)::
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed and delivered by received from each Loan Party, party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent and the Lenders(which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed from the Borrower a Closing Certificate in the Form of Exhibit E, dated the Effective Date and signed on behalf of the Borrower by a Responsible Financial Officer of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectBorrower.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Borrower certifying (i) that Transactions and any other legal matters relating to the conditions specified Loan Parties, the Transaction Documents or the Transactions, all in this Section 5 have been satisfied, form and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be substance reasonably expected satisfactory to have, either individually or in the aggregate, a Material Adverse EffectAdministrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate attesting from Holland & Knight LLP, counsel to the Solvency of the Loan Parties on a consolidated basis before Parties, and after giving effect to this Amendment▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, from the chief financial officer Esq., Senior Vice President, Secretary and Chief Legal Officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing opinions addressed to the Administrative Agent and the Lenders and required dated the Effective Date substantially in the form of Exhibits F-1 and F-2, respectively.
(e) The Borrower shall have issued and sold the First Priority Notes and the Second Priority Notes substantially on the terms and conditions described in the Offering Memorandum.
(f) At or on the Effective Date, (1) the Existing Notes tendered pursuant to the Offer to Purchase shall have been accepted by the Borrower in accordance with the terms of the Offer to Purchase, (2) the supplemental indentures contemplated by the Offer to Purchase shall have been executed and delivered by all parties thereto, and the only condition to their becoming operative shall be paid the payment for the Existing Notes tendered and (3) all Existing Notes not accepted for purchase tendered pursuant to the Offer to Purchase shall have been irrevocably called for redemption on or before prior to January 17, 2006 and an amount sufficient to fund the Fifth Amendment Effective Date pursuant redemption of the Existing Notes shall, concurrently with the purchase of the Securities by the Initial Purchasers, be deposited with the trustees for such Existing Notes in order to that certain Fifth Amendment Fee Letter dated as defease or discharge each of February 8, 2017 by and among the Existing Notes Indentures.
(g) The Borrower shall have furnished to the Administrative Agent the Security Agreement, duly executed by each Loan Party and each of the other parties thereto, together with:
(A) evidence satisfactory to the Administrative Agent that (upon filing in the appropriate filing offices referred to in clause (x) below) the Collateral Agent (for the benefit of the Lenders and the Borrowerother holders of Permitted First Priority Obligations) has a valid and perfected first priority security interest in the Collateral, shall have been paid as the case may be, including (or x) such documents duly executed by each Loan Party as the Administrative Agent may request with respect to the perfection of the Collateral Agent’s security interests in the Collateral (including financing statements under the UCC and trademark and copyright security agreements), (y) copies of UCC search reports as of a recent date listing all effective financing statements that name any Loan Party as debtor, together with copies of such financing statements (except for those which shall be paid concurrently terminated on the Effective Date and Permitted Liens) and (z) evidence of termination and release of any existing Liens which are not Permitted Liens (including UCC-3 termination statements and releases);
(B) certificates representing all certificated Pledged Collateral (as defined in the Security Agreement) and stock powers or other instruments of transfer for such share certificates executed in blank; and
(C) Control Agreements with respect to each account listed on Schedule 6 to the closing of this Amendment)Security Agreement.
(jh) The Borrower shall have furnished to the Administrative Agent such further information, certificates and documents as the Administrative Agent may reasonably request.
(i) The Borrower shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for provided an Officer’s Certificate to the Administrative Agent, Agent to the extent documented prior to or on effect that:
(i) the date hereof (for the avoidance of doubt, a summary statement of such fees, charges representations and disbursements shall be sufficient documentation for the obligations warranties set forth in this Section 5(j)Article III hereof and in the Security Documents are true and correct as of the Effective Date;
(ii) at the time of and immediately after giving effect to the Transactions to be consummated on the Effective Date, no Default shall have occurred and be continuing;
(iii) immediately after giving effect to the Transactions, (a) the fair value of the assets of each of the Borrower and each Subsidiary Guarantor, at a fair valuation, will exceed its debts and probable liabilities, subordinated, contingent or otherwise; provided (b) the present fair saleable value of the property of each of the Borrower and each Subsidiary Guarantor will be greater than the amount that supporting documentation for will be required to pay its debts and other probable liabilities, subordinated, contingent or otherwise, as such summary statement debts and other probable liabilities become absolute and matured; (c) each of the Borrower and each Subsidiary Guarantor will be able to pay its debts and probable liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) none of the Borrower nor any Subsidiary Guarantor will have unreasonably small capital with which to conduct the business in which it is provided promptly thereafter)engaged as such business is now conducted and is proposed to be conducted.
Appears in 1 contract
Conditions. A. This Amendment shall become effective upon on the satisfaction of first date on which the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):
(a) This Amendment Borrower shall have been duly executed and delivered by each Loan Party, to the Administrative Agent (or shall have caused to be executed and delivered to the Administrative Agent by the appropriate persons) the following:
1. This Amendment;
2. The Amendment to Lease/Purchase Documents between the Borrower and the Lenders.Company;
3. Payment in immediately available funds of all fees agreed to be paid by the Borrower in connection with this Amendment, including without limitation, a fully-earned and non-refundable amendment fee in the amount of Seventy-Five Thousand Dollars (b) The $50,000.00), which amendment fee shall be payable to the Administrative Agent shall have received certificates executed by a Responsible Officer for pro rata distribution to Bank of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended herebyAmerica, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan PartyN.A., in each caseits capacity as a Lender (“BANA”), certified as trueand W▇▇▇▇ Fargo Bank, accurate and complete and in effect on the date hereof N.A (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such “W▇▇▇▇ Fargo”); and
4. Such other supporting documents and certifications certificates as the Administrative Agent or its counsel may reasonably require to evidence that each Loan Party is duly organized or formed, request.
B. There shall have been executed and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except delivered to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfiedan Assignment and Assumption Agreement by and between M&I M▇▇▇▇▇▇▇ & I▇▇▇▇▇ Bank (“M&I”) and BANA, and (ii) that there has been no event or circumstance since December 29an Assignment and Assumption Agreement by and between M&I and W▇▇▇▇ Fargo, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, each in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging pursuant to which M&I sells and agreeing assigns to BANA and W▇▇▇▇ Fargo respectively, and each purchases from M&I and assumes the Assigned Interest described and defined in their respective Assignment and Assumption Agreements (the collective Assigned Interests being all of M&I’s Revolving Commitment), such that certain after giving effect to such Assignment and Assumption Agreements, BANA shall hold 50% of the text shown as unmarked text in Exhibit A Total Revolving Commitments and W▇▇▇▇ Fargo shall hold 50% of the Total Revolving Commitments.
C. All legal matters incident to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof transactions contemplated hereby shall be true and correct.
(i) All fees and expenses due and owing satisfactory to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This Amendment Mutual Conditions Precedent
6.1 The respective obligations of the Parties hereto to complete the transactions contemplated by this Agreement shall become effective upon be subject to the satisfaction satisfaction, on or before the Effective Date, or earlier date where specified, of the following conditions precedent no later than February 9precedent, 2017 each of which may only be waived in full or in part by the mutual consent of I-Level and Telupay (and only to the “Fifth Amendment Effective Date”extent such waiver is permitted by applicable Law):
(a) This Amendment shall the Board of Directors of I-Level will have been duly executed determined that the Merger is fair to the I-Level Shareholders and delivered by each Loan Party, is in the Administrative Agent and the Lenders.best interests of I-Level;
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer Board of each Loan Party attaching Directors of Telupay will have:
(i) resolutions or other action authorizing determined that the actions under this Amendment Merger is fair to the Telupay Shareholders and is in the Credit Agreement as amended hereby, best interests of Telupay;
(ii) incumbency certificatesto the extent required by law or if determined by I-Level and Telupay to be appropriate in the circumstances, received a fairness opinion prepared for Telupay to the effect that, subject to the assumptions, qualifications and limitations relating to such opinion, as of the Execution Date, the Merger is fair from a financial point of view to holders of Telupay Shares; and
(iii) certified copies determined to recommend that the Telupay Shareholders vote in favor of the Organization Documents Merger;
(c) the Merger shall have been approved at the Telupay Meeting by more than 66 2/3% of such Loan Partythe votes cast by the Telupay Shareholders represented in person or by proxy at the Telupay Meeting;
(d) each of I-Level and Telupay shall have completed their due diligence inspection conducted in conjunction with the Merger and the transactions contemplated herein to the satisfaction of I-Level and Telupay, respectively;
(e) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding, of a judicial or administrative nature or otherwise, brought by a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with any Regulatory Approvals which have been obtained;
(f) all consents, waivers, permits, orders and approvals of any Governmental Entity and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Merger, the failure of which to obtain or the non-expiry of which would constitute a criminal offence, or would have a Material Adverse Effect on I-Level or Telupay, as the case may be, shall have been obtained or received on terms that will not have a Material Adverse Effect on I-Level and/or Telupay;
(g) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each casecase that has a reasonable likelihood of success;
(i) seeking to restrain or prohibit the consummation of the Merger or seeking to obtain from I-Level or Telupay any damages that are material in relation to Telupay taken as a whole;
(ii) seeking to prohibit or materially limit the ownership or operation by I-Level of any material portion of the Business or Assets of Telupay or to compel I-Level to dispose of or hold separate any material portion of the Business or Assets of Telupay, certified as true, accurate and complete and a result of the Merger;
(iii) seeking to prohibit I-Level from effectively controlling in effect on any material respect the date hereof (Business or a certification that there shall have been no changes to the Organization Documents operations of such Loan Party since August 2, 2016) and Telupay; or
(iv) such there is in effect any other documents and certifications as the Administrative Agent may circumstance which is reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected likely to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of Effect on I-Level or Telupay or the Borrower certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Date.
(f) The Administrative Agent shall have received the list of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.Surviving Corporation;
(h) The representations and warranties set forth in Section 4 hereof all necessary Regulatory Approvals shall be true and correct.have been obtained; and
(i) All fees and expenses due and owing neither Party shall have given notice to the Administrative Agent and other within 30 days of the Lenders and required to be paid Execution Date terminating this Agreement based on or before the Fifth Amendment Effective Date pursuant to results of the due diligence investigation conducted by the Party giving notice. It is the Parties' intention that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, each Party shall have been paid (a due diligence investigation period, expiring 30 days from the Execution Date, in order to conduct such due diligence investigations as the Parties deem necessary to determine the feasibility, economic or otherwise, of the transactions contemplated in this Agreement. Either Party may terminate this Agreement at any time within such 30 day period by delivery to the other of written notice of termination of this Agreement. Upon such termination, this Agreement shall be paid concurrently with of no further force and effect. Either Party may waive the closing of this Amendment)due diligence period in writing at its option.
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Conditions. This The effectiveness of this Amendment shall become effective upon is subject to the satisfaction of the following conditions precedent no later than February 9precedent:
a. the execution and delivery of this Amendment by each Credit Party, 2017 Agent, the Revolving Lenders listed on Schedule 1.1(b) (as amended hereby) and the “Fifth Required Lenders;
b. the payment by Borrower (i) to each of the Lenders that has executed this Amendment Effective Date”):on the date hereof of a fully-earned, non-refundable amendment fee equal to 0.25% of the sum of such Lender’s Revolving Loan Commitment and Term Loan and (ii) to each of the Revolving Lenders providing additional Revolving Loan Commitments pursuant hereto such fees as may have been agreed in writing by Borrower and each such Revolver Lender;
(a) This c. the delivery by the Credit Parties to Agent of authorizing resolutions duly executed and effective by the board of directors, shareholders, managers and/or members, as applicable, of such Credit Party authorizing the execution and delivery of this Amendment and the incurrence of the additional indebtedness, liabilities and obligations of such Credit Party hereunder, which such authorizing resolutions shall have been duly executed certified to and delivered in favor of Agent by each Loan PartyResponsible Officer of such Credit Party as true, correct and complete copies thereof;
d. the Administrative Agent truth and accuracy of the Lenders.representations and warranties contained in Section 4 hereof;
(b) e. The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching (i) resolutions or other action authorizing a solvency certificate, dated the actions under this First Amendment Effective Date, signed by the chief financial officer of Borrower and in form and substance as delivered on the Credit Agreement as amended hereby, Closing Date and (ii) incumbency certificatesa certificate, (iii) certified copies of dated the Organization Documents of such Loan Party, in each case, certified as true, accurate First Amendment Effective Date and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower Borrower, certifying (i) that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds Amendment and the Borrower shall receive funding of Revolving Loans on the proceeds of such issuance no later than the Fifth First Amendment Effective Date.
Date (fy) The Administrative Agent shall have received the list no Default or Event of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings Default exists and (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agent.
(gz) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The all representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations each Credit Party set forth in this Section 5(jAmendment and each of the other Loan Documents are true and correct in all material respects (without duplication of any materially qualifier contained therein); provided that supporting documentation for such summary statement is provided promptly thereafter)and
f. no Default or Event of Default shall have occurred and be continuing or arise as a direct result of the effectiveness of this Amendment.
Appears in 1 contract
Conditions. This Amendment The consummation of the transactions set forth in Sections 3, 4 and 5 of this Agreement shall become effective upon be subject to the satisfaction of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Effective Date”):precedent:
(a) This Amendment The Administrative Agent (or its counsel) shall have been duly executed received from each of Holdings, the Borrower and delivered by each Loan Party, the Restatement Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent and the Lenders(which may include facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each Loan Party attaching of (i) resolutions or other action authorizing Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the actions under this Amendment and Borrower, substantially in the Credit Agreement as amended herebyform of Exhibit B-1, (ii) incumbency certificates▇▇▇▇ ▇▇▇▇▇▇▇▇▇ P.L.C., Arizona local counsel for the Borrower, substantially in the form of Exhibit B-2, and (iii) certified copies ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Rhode Island local counsel for the Borrower, substantially in the form of the Organization Documents of such Loan PartyExhibit B-3, and, in the case of each casesuch opinion required by this paragraph, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes covering such other matters relating to the Organization Loan Parties, the Loan Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications or the Restatement Transactions as the Administrative Agent may Restatement Lenders shall reasonably require request. The Borrower hereby requests such counsel to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires deliver such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectopinions.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Borrower certifying (i) that Restatement Transactions and any other customary legal matters relating to the conditions specified Loan Parties, the Loan Documents or the Restatement Transactions, all in this Section 5 have been satisfied, form and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be substance reasonably expected satisfactory to have, either individually or in the aggregate, a Material Adverse EffectAdministrative Agent and its counsel.
(d) The Each of the conditions set forth in Section 4.02 of the Restated Credit Agreement shall be satisfied, and the Administrative Agent shall have received a certificate attesting to certificate, dated the Solvency of Restatement Effective Date and signed by the Loan Parties on President, a consolidated basis before and after giving effect to this Amendment, from the chief financial officer Vice President or a Financial Officer of the Borrower, confirming satisfaction of the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, all fees and other amounts due and payable in form connection with this Agreement and substance reasonably acceptable the Existing Credit Agreement on or prior to the Administrative AgentRestatement Effective Date, including, to purchase Qualified Securities the extent invoiced in writing at least two Business Days prior to the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Restatement Effective Date, reimbursement or payment of all reasonable documented out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall be satisfied after giving effect to the Restatement Transactions, and in connection therewith the Administrative Agent shall have received (i) a completed Perfection Certificate with respect to the list Loan Parties (including the Subsidiaries party to the Reaffirmation Agreement) dated the Restatement Effective Date and signed by an executive officer or Financial Officer of Restaurants the Borrower, together with all attachments contemplated thereby, (ii) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to be closed or refranchised referred the Loan Parties (including the Subsidiaries party to the Reaffirmation Agreement) in the definition jurisdictions contemplated by the Perfection Certificate and the copies of “Identified Restaurant Closures/Re-Franchisings the financing statements (2017)” in the Credit Agreement which shall be in form or similar documents) disclosed by such research and substance acceptable evidence reasonably satisfactory to the Administrative AgentAgent that the Liens indicated by such financing statements (or similar documents) are expressly permitted by the Restated Credit Agreement, (iii) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Agreement and the Pledge Agreement (including any supplements thereto), after giving effect to the Restatement Transactions, and perfect such Liens to the extent required by, and with the priority required by, the Security Agreement and the Pledge Agreement and (iv) (A) amendments to each Mortgage with respect to each Mortgaged Property and each Restatement Mortgaged Property providing that the Tranche F Term Loans (in addition to the other Obligations) shall be secured by a Lien on each such Mortgaged Property and Restatement Mortgaged Property, as the case may be, (B) endorsements to existing policy or policies of title insurance issued by a nationally recognized title insurance company, insuring the Lien of each such Mortgage as amended so remains a valid first Lien on the Mortgaged Property or Restatement Mortgaged Property, as the case may be, described therein, free of any other Liens except as expressly permitted by Section 6.02 of the Restated Credit Agreement, together with such endorsements, coinsurance and reinsurance as the Collateral Agent or the Restatement Lenders may reasonably request and (C) such surveys, abstracts, appraisals, legal opinions and other documents as the Collateral Agent or the Restatement Lenders may reasonably request with respect to any such Mortgage or Mortgaged Property or Restatement Mortgaged Property, as the case may be.
(g) A Reaffirmation Agreement substantially in the form of Exhibit C hereto shall have been executed and delivered by each party thereto. The Administrative Agent shall have received an agreeement, in form notify the Borrower and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain Restatement Lenders of the text shown as unmarked text in Exhibit A to the Fourth Amendment is notRestatement Effective Date, and has never beensuch notice shall be conclusive and binding. Notwithstanding the foregoing, effectively part the consummation of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties transactions set forth in Section Sections 3, 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent 5 of this Agreement and the obligations of the Tranche F Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent make Tranche F Term Loans and the BorrowerRevolving Commitments of the Revolving Lenders provided for herein shall not become effective unless each of the foregoing conditions is satisfied at or prior to 5:00 p.m., New York City time, on April 22, 2004 (and, in the event such conditions are not so satisfied or waived, this Agreement shall have been paid (or shall be paid concurrently with the closing of this Amendmentterminate at such time).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (On Semiconductor Corp)
Conditions. This Amendment Restatement Agreement shall become effective upon at the satisfaction of the following conditions precedent no later than February 9, 2017 time (the “Fifth Amendment Restatement Effective Date”) upon which each of the conditions set forth in the following clauses are satisfied (or waived by the Lenders):
(a) This Amendment The Administrative Agent shall have been received duly executed and delivered signature pages of this Restatement Agreement executed by each Loan Party, the Administrative Agent Agent, each Lender listed on the Restated Commitment Schedule, the L/C Issuer and the LendersSwing Line Lender.
(b) The Administrative Agent shall have received certificates executed by a Responsible Officer of each Loan Party attaching customary opinions from (i) resolutions or other action authorizing Davis Po▇▇ & ▇▇▇▇▇ell ▇▇▇, ▇▇ New York counsel for the actions under this Amendment Loan Parties, and the Credit Agreement as amended hereby, (ii) incumbency certificatesShutts & ▇▇▇▇▇ LL▇, ▇▇ special Delaware, Florida, Michigan, Ohio and Washington counsel for the Loan Parties, in each case, (iiix) certified addressed to the Administrative Agent and each Lender, (y) dated as of the Restatement Effective Date, and (z) in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received the following, in form and substance satisfactory to the Administrative Agent:
(i) copies of the Organization Documents of such each Loan Party, in each case, Party certified as true, accurate to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and in effect on the date hereof (certified by a secretary or a certification that there shall have been no changes to the Organization Documents assistant secretary of such Loan Party since August 2, 2016) to be true and correct as of the Restatement Effective Date;
(ivii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Restatement Agreement and the other related Loan Documents to which such Loan Party is a party; and
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease state of organization or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation.
(cd) The Administrative Agent shall have received certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents in such jurisdictions requested by the Administrative Agent.
(e) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) that as to the conditions specified representations and warranties of each Loan Party contained in this Section 5 have been satisfied, below being true and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or correct in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency all material respects on and as of the Loan Parties on a consolidated basis before and Restatement Effective Date after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds Restatement Agreement and the Borrower shall receive the proceeds of such issuance no later than the Fifth Amendment Effective Datetransactions contemplated hereby.
(f) The Administrative Agent No Default shall have received exist immediately prior to, or would result from, the list effectiveness of Restaurants to be closed or refranchised referred to in this Restatement Agreement and the definition of “Identified Restaurant Closures/Re-Franchisings (2017)” in the Credit Agreement which shall be in form and substance acceptable to the Administrative Agenttransactions contemplated hereby.
(g) The Administrative Agent shall have received an agreeement, in form and substance reasonably satisfactory to a certificate signed by the Administrative Agent, acknowledging and agreeing that certain chief financial officer of the text shown as unmarked text in Exhibit A Borrower certifying that the Borrower and its Subsidiaries, on a consolidated basis, after giving effect to this Restatement Agreement and the Fourth Amendment is notrelated transactions, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correctare Solvent.
(i) All upon the request of any Lender made at least ten (10) Business Days prior to the Restatement Effective Date, the Borrower shall have provided to such Lender (and such Lender shall be reasonably satisfied with) the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three (3) Business Days prior to the Restatement Effective Date, and (ii) at least three (3) Business Days prior to the Restatement Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver, to each Lender that so requests, a Beneficial Ownership Certification.
(i) The Administrative Agent, the Lenders and the Restatement Lead Arrangers shall have received all fees and expenses due required to be paid under separate documentation entered into on or prior to the date hereof in connection with this Restatement Agreement and owing all reasonable and documented out-of-pocket expenses (including reasonable and documented out-of-pocket fees and expenses of Cahill G▇▇▇▇▇ & ▇▇▇▇▇el ▇▇▇, ▇▇ counsel to the Administrative Agent and the Lenders Restatement Lead Arrangers) to the extent invoiced at least one Business Day prior to the Restatement Effective Date, in each case, due and required payable by the Borrower pursuant to be paid Section 11.04 of the Existing Credit Agreement on or before prior to the Fifth Amendment Restatement Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment)Date.
(j) The Administrative Agent Borrower shall have been reimbursed for paid to (i) each Lender and L/C Issuer holding Existing Revolving Commitments and Existing Letters of Credit, respectively, immediately prior to the Restatement Effective Date, (x) all reasonable accrued and documented unpaid fees and out-of-pocket charges and other expenses incurred in connection with this Amendmenton the Existing Revolving Commitments held by such Lender to, but not including, without limitationthe Restatement Effective Date, and (y) all accrued and unpaid participation fees with respect to participations in Existing Letters of Credit to, but not including, the reasonable fees Restatement Effective Date, and disbursements of counsel for (ii) each Lender holding Revolving Loans under the Administrative Agent, Existing Credit Agreement immediately prior to the extent documented prior to or Restatement Effective Date, (x) the aggregate principal amount of all existing Revolving Loans (if any) held by such Lender at par and (y) all accrued and unpaid interest on the date hereof (for Loans held by such Lender to, but not including, the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter)Restatement Effective Date.
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Conditions. This Amendment shall become effective upon The obligation of the MEP Participants to make available any MEP Participants Additional Cost Financing is subject to the satisfaction of the following conditions precedent conditions:
(i) There exists no later than February 9, 2017 (the “Fifth Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered by each Loan Party, the Administrative Agent and the Lenders.
Event of Default or (b) event with which the giving of notice or the passage of time, or both, would be an Event of Default (“Default”);
(ii) The Administrative Agent MEP Participants' Representative shall have received certificates executed by at least 20 days before such financing a Responsible Officer request from the Turnkey Contractor for MEP Participants Additional Cost Financing describing the use of each Loan Party attaching (i) resolutions or other action authorizing the actions under this Amendment and the Credit Agreement as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents proceeds of such Loan Partyrequested financing, in each case, certified as true, accurate attaching invoices and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (i) documentation that the conditions specified in this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could amounts to be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, paid from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities in the Borrower for not less than $18,500,000 in gross cash proceeds and the Borrower shall receive the proceeds of such issuance no later than advance have been incurred to perform the Fifth Amendment Effective Date.Work in accordance with the terms of this Agreement (the “Financing Request”);
(fiii) The Administrative Agent MEP Participants' Representative shall have received no more than two (2) days before such financing a certificate of the list Turnkey Contractor confirming that no Default exists or will exist on the date of Restaurants such financing, that the Turnkey Contractor has no defenses or counterclaims that are currently assertable or anticipated to be closed or refranchised referred to assertable under the Turnkey Agreement and the Turnkey Agreement is the legal, valid and binding obligations of the Turnkey Contractor, enforceable in the definition of “Identified Restaurant Closures/Re-Franchisings accordance with its terms;
(2017)” in the Credit Agreement which iv) The Independent Engineer shall be in form and substance acceptable confirm to the Administrative Agent.MEP Participants and the Turnkey Contractor that the amounts which are the subject of the Financing Request have been incurred for the Work in accordance with the terms of this Agreement; and
(gv) The Administrative Agent MEP Participants' Representative shall have received an agreeementevidence that (a) the lien of the MEP Participants on the Operating Fee and the offset right of the MEP Participants’ Corporation Tax liability is valid, in form perfected and substance reasonably of first priority or (b) such other security arrangement as is satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text MEP Participants is in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendmentplace.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing to the Administrative Agent and the Lenders and required to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated as of February 8, 2017 by and among the Administrative Agent and the Borrower, shall have been paid (or shall be paid concurrently with the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent, to the extent documented prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j); provided that supporting documentation for such summary statement is provided promptly thereafter).
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Sources: Turnkey Agreement
Conditions. This Amendment The Incremental Commitments shall become effective upon the satisfaction as of the following conditions precedent no later than February 9, 2017 (the “Fifth Amendment Increase Effective Date”):; provided that:
(ai) This Amendment the Borrower shall have been duly executed and delivered by each Loan Party, to the Administrative Agent and a certificate of each Loan Party dated as of the Lenders.
(b) The Administrative Agent shall have received certificates executed Increase Effective Date signed by a Responsible Officer of each such Loan Party (x) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (iy) resolutions or other action authorizing in the actions under this Amendment case of the Borrower, certifying that, before and after giving effect to such Incremental Commitments and the Credit Agreement Extensions, if any to be made on such Increase Effective Date (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as amended hereby, (ii) incumbency certificates, (iii) certified copies of the Organization Documents of such Loan Party, in each case, certified as true, accurate and complete and in effect on the date hereof (or a certification that there shall have been no changes to the Organization Documents of such Loan Party since August 2, 2016) and (iv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationIncrease Effective Date, except to the extent that failure (1) such representations and warranties specifically refer to do so could not reasonably be expected an earlier date, in which case they are true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to have a “materiality”, “Material Adverse Effect.” or similar language shall be true and correct in all respects as of such date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists;
(cii) The the Borrower shall have delivered any Notes requested by the Lenders to reflect such Incremental Commitments;
(iii) the Administrative Agent shall have received a certificate signed by a Responsible Officer documentation from each Person providing such Incremental Commitments evidencing its share of the Borrower certifying (i) that the conditions specified in Incremental Commitments and its obligations under this Section 5 have been satisfied, and (ii) that there has been no event or circumstance since December 29, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(d) The Administrative Agent shall have received a certificate attesting to the Solvency of the Loan Parties on a consolidated basis before and after giving effect to this Amendment, from the chief financial officer of the Borrower.
(e) The Administrative Agent shall have received an executed copy of an agreement by a Sponsor Investor, Agreement in form and substance reasonably acceptable to the Administrative Agent, to purchase Qualified Securities including, in the Borrower for not less than $18,500,000 case of a new Lender, a New Lender Joinder Agreement, subject in gross cash proceeds and each case to any requisite consents required under Section 11.06;
(iv) the Borrower shall receive have paid such fees to the proceeds Administrative Agent, for its own account and for the benefit of the Lenders participating in such issuance no later than Incremental Commitments as are agreed mutually at the Fifth Amendment Effective Date.time and shall have paid to MLPFSBofA Securities any fees required to be paid pursuant to the Fee Letter to which MLPFSBofA Securities (as assignee of M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated) is a party in connection with such Incremental Commitments;
(fv) The the Borrower shall make any breakage payments in connection with any adjustment of Revolving Credit Loans pursuant to Section 2.15(d);
(vi) if requested by the Administrative Agent or any Lender or other Eligible Assignee participating in such Incremental Commitments, the Administrative Agent shall have received the list a favorable opinion of Restaurants to be closed or refranchised referred to in the definition of “Identified Restaurant Closures/Re-Franchisings counsel (2017)” in the Credit Agreement which counsel shall be in form and substance reasonably acceptable to the Administrative Agent.
(g) The Administrative Agent shall have received an agreeement), in form and substance reasonably satisfactory to the Administrative Agent, acknowledging and agreeing that certain of the text shown as unmarked text in Exhibit A to the Fourth Amendment is not, and has never been, effectively part of the Credit Agreement, despite a scrivener’s error which included at least part of such text as unmarked text in Exhibit A to the Fourth Amendment.
(h) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(i) All fees and expenses due and owing addressed to the Administrative Agent and the Lenders and required each Lender, as to be paid on or before the Fifth Amendment Effective Date pursuant to that certain Fifth Amendment Fee Letter dated such customary matters concerning such Incremental Commitments as of February 8, 2017 by and among the Administrative Agent and may reasonably request;
(vii) upon the Borrowerreasonable request of any Lender made at least ten days prior to the effectiveness of such Increase Effective Date, the Borrower shall have been paid (or provided to such Lender, and such Lender shall be paid concurrently with reasonably satisfied with, the closing of this Amendment).
(j) The Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges documentation and other expenses incurred information so requested in connection with this Amendmentapplicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the reasonable fees USA PATRIOT Act and disbursements of counsel for the Administrative AgentBeneficial Ownership Regulation, to the extent documented in each case at least five days prior to or on the date hereof (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 5(j)date; provided that supporting documentation for such summary statement is provided promptly thereafter).and
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