First Amendment Effective Date. The amendments set forth in Article I shall become effective as of the date (the “First Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied: (a) The Noteholders shall have received evidence reasonably satisfactory to them that the closing of the NYSE Merger Transactions has occurred or will occur substantially concurrently with the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders; (b) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”); (c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request; (d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders; (e) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date; (f) The Noteholders shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above; (g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and (h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each Noteholder.
Appears in 1 contract
Sources: Note Purchase Agreement (Intercontinentalexchange Inc)
First Amendment Effective Date. The amendments This Amendment shall become effective on the first date on which each of the conditions set forth in Article I shall become effective as of the date this Section 3.1 is satisfied (such date, the “First Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied:):
(a) The Noteholders the Administrative Agent shall have received evidence reasonably counterparts of this Amendment duly executed and delivered by the Borrower and the Lenders constituting the Majority Lenders in form, substance and date satisfactory to them that the closing Administrative Agent;
(b) after giving effect to this Amendment, no Default or Event of Default shall exist under the Credit Agreement or under any other Loan Document;
(c) each representation and warranty of the NYSE Merger Transactions has occurred or will occur substantially concurrently with Borrower and the occurrence Guarantors set forth in the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the First Amendment Effective Date Date, except (i) to the extent any such representation and warranty is expressly limited to an earlier date, in accordance with which case, on and as of the Merger Agreement First Amendment Effective Date, such representation and warranty shall continue to be true and correct as of such specified earlier date, and (ii) to the extent that any such representation and warranty is expressly qualified by materiality or by reference to Material Adverse Effect, such representation and warranty (as so qualified) shall continue to be true and correct in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholdersall respects;
(bd) The Noteholders the Administrative Agent shall have received a Subsidiary Guaranty (together with the guaranty provided an opinion by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇▇ and ▇& ▇▇▇▇▇ LLP, as counsel to the Required HoldersCredit Parties, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on in a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required HoldersAdministrative Agent;
(e) The Noteholders each of the Second Lien Indenture and the Second Lien Intercreditor Agreement shall be in full force and effect, and the Initial Exchange Date shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to occurred concurrently with the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as occurrence of the First Amendment Effective Date;
(f) The Noteholders the Borrower shall have received paid (i) a certificate an amendment fee payable to the Administrative Agent, for the account of each undersigned Lender who has executed and delivered its signature page to this Amendment on or before 12:00 pm eastern time on December 21, 2018, in an amount equal to 60 basis points on each such Lender’s Loans on the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of First Amendment Effective Date and (ii) to the extent invoiced no later than one (1) Business Days prior to the First Amendment Effective Date, in form all fees and substance reasonably satisfactory other amounts due and payable on or prior to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form including reasonable and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable documented fees and disbursements expenses of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP not previously and Stroock & Stroock & ▇▇▇▇▇ LLP and all reasonable out-of-pocket expenses required to be reimbursed or paid in accordance with Section 2.1(e) in connection with by the preparation, negotiation, execution and delivery of this First Amendment and Borrower under the transactions contemplated herebyCredit Agreement; and
(hg) The Obligors the Administrative Agent shall have paid received mortgages and other Security Instruments sufficient to create first priority, perfected Liens (subject only to Permitted Liens) on at least 95% of the amendment fee required total PV-9 of the Proved Reserves of the Borrower and the Guarantors evaluated by Section 2.3 hereof the most recently delivered Reserve Report, after giving effect to each Noteholderexploration and production activities, acquisitions, dispositions and production.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Ultra Petroleum Corp)
First Amendment Effective Date. The amendments set forth in Article I obligations of the Lenders to make Term A Loans shall not become effective as of until the date (the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfied:is satisfied (or waived in accordance with Section 9.02):
(a) The Noteholders shall have received evidence reasonably satisfactory to them that the closing of the NYSE Merger Transactions has occurred Administrative Agent (or will occur substantially concurrently with the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;
(bits counsel) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet from each party hereto either (A) a counterpart of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments signed on a Pro Forma Basis to give effect behalf of such party or (B) written evidence satisfactory to the consummation Administrative Agent (which may include fax or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of the NYSE Merger Transactions as if such events had occurred on such date First Amendment and (ii) an unaudited consolidated income statement duly executed copies of New ICE Parent the Loan Guaranty, the Security Agreement and its Subsidiaries for such other Loan Documents required by the period of four fiscal quarters most recently ended prior to Administrative Agent and such other certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the transactions contemplated by the First Amendment Effective Date showing adjustments on and the other Loan Documents, including any promissory notes requested by a Pro Forma Basis Lender pursuant to give effect Section 2.10 of this Agreement payable to the consummation order of each such requesting Lender and a written opinion of the NYSE Merger Transactions as if such events had occurred on the first day of such periodLoan Parties’ counsel, together with an Officer’s Certificate with respect addressed to the period covered by such financial statementsAdministrative Agent, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of Issuing Bank and the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;Lenders.
(eb) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders Administrative Agent shall have received (i) a certificate of the secretaryBorrower, an assistant secretary dated the First Amendment Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors, members or other body authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party and, in the case of the Borrower, its Financial Officers, and (C) contain appropriate officer attachments, including the charter, articles or certificate of New ICE Parent organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of the Borrower and a true and correct copy of its bylaws or operating, management or partnership agreement, or other organizational or governing documents, and (ii) a long form good standing certificate for the Borrower from its jurisdiction of organization.
(c) The Administrative Agent shall have received a certificate, signed by a Financial Officer of the Borrower, dated as of the First Amendment Effective Date (i) stating that no Default has occurred and is continuing, (ii) stating that the representations and warranties contained in the Loan Documents are true and correct as of such date, and (iii) certifying as to any other factual matters as may be reasonably requested by the Administrative Agent.
(d) The Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses required to be reimbursed for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the First Amendment Effective Date. All such amounts will be paid with proceeds of Loans made on the First Amendment Effective Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the First Amendment Effective Date.
(e) The Administrative Agent shall have received the results of a recent lien search in the jurisdiction of organization of Borrower and each jurisdiction where assets of the Borrower are located, and such search shall reveal no Liens on any of the assets of the Borrower except for liens permitted by Section 6.02 or discharged on or prior to the First Amendment Effective Date pursuant to a pay-off letter or other documentation satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate signed by a Financial Officer dated the First Amendment Effective Date in form and substance reasonably satisfactory to the Required HoldersAdministrative Agent.
(g) The Administrative Agent, certifying (A) that attached thereto is a true and complete copy the Collateral Agent, the representative of the articles or certificate holders of incorporationthe Senior Notes and the other parties thereto shall have entered into the Intercreditor Agreement.
(h) The Administrative Agent shall have received duly executed amendments to the Senior Notes, certificate containing terms and conditions satisfactory in all respects to the Administrative Agent.
(i) The Administrative Agent and its counsel shall have completed all legal due diligence, the results of formation or other organizational document which shall be satisfactory to Administrative Agent in its sole discretion.
(i) The Administrative Agent and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certificationeach requesting Lender shall have received, (Bx) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred least five (5) days prior to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, all documentation and other information regarding the Borrower requested in form connection with applicable “know your customer” and substance reasonably satisfactory anti-money laundering rules and regulations, including the USA PATRIOT Act, to the Required Holders, certifying (A) that attached thereto is a true and complete copy extent requested in writing of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by Borrower at least ten (10) days prior to the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificateEffective Date, and (Cy) that attached thereto is a true properly completed and complete copy of resolutions adopted by signed IRS Form W-8 or W-9, as applicable, for Borrower, and (ii) to the board of directors (or similar governing body) of NYSE, authorizing extent the execution, delivery and performance of Borrower qualifies as a guaranty “legal entity customer” under the Note Purchase AgreementBeneficial Ownership Regulation, and as at least five (5) days prior to the incumbency and genuineness of First Amendment Effective Date, any Lender that has requested, in a written notice to the signature of each officer of NYSE executing such guarantyBorrower at least the (10) days prior to the First Amendment Effective Date, and attaching all such copies of a Beneficial Ownership Certification in relation to the documents described above;
(g) The Obligors Borrower shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with received such Beneficial Ownership Certification (provided that, upon the preparation, negotiation, execution and delivery by such Lender of its signature page to the First Amendment, the condition set forth in this First Amendment and the transactions contemplated hereby; andclause (ii) shall be deemed to be satisfied).
(hk) The Obligors Administrative Agent shall have paid received such other documents as the amendment fee required by Section 2.3 hereof to each NoteholderAdministrative Agent, the Issuing Bank, any Lender or their respective counsel may have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Marcus Corp)
First Amendment Effective Date. The amendments set forth in Article I shall become effective as effectiveness of this First Amendment is subject to the satisfaction (or written waiver) of the following conditions (the date (of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied:):
(a) The Noteholders Administrative Agent shall have received counterparts (or written evidence reasonably satisfactory to them the Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart) of this First Amendment duly executed by (i) each Loan Party, (ii) the closing Administrative Agent and (iii) each Consenting Lender.
(b) The Borrower shall have paid all fees, compensation and reasonable and documented expenses (including, without limitation, reasonable and documented legal fees and expenses) of the NYSE Merger Transactions Administrative Agent and the Revolving Credit Lenders due and payable on or prior to the First Amendment Effective Date. The Borrower shall have paid to the Administrative Agent, for the account of each Consenting Lender, a consent fee (“Consent Fee”) equal to 0.025% of the outstanding principal amount of such ▇▇▇▇▇▇’s Revolving Credit Commitments (whether drawn or undrawn) on the First Amendment Effective Date. Payment of each Consent Fee will be made in immediately available funds in Dollars and will not be subject to counterclaim or set-off for, or be otherwise affected by, any claim or dispute relating to any other matter.
(c) No Default or Event of Default has occurred and is continuing on the First Amendment Effective Date both before and immediately after giving effect to the transactions contemplated hereunder. (d) Each of the representations and warranties made by any Loan Party in Article III of this First Amendment, and in or will occur substantially concurrently with pursuant to the occurrence Loan Documents shall be true and correct in all material respects on and as of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;
(b) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred made on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of the First Amendment Effective Date, in form and substance reasonably satisfactory except to the Required Holdersextent that such representations and warranties refer to an earlier date, certifying (A) that attached thereto is a in which case they shall be true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and correct in all amendments thereto of New ICE Parent, certified material respects as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described aboveearlier date; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Dateprovided that, in form each case, such materiality qualifier shall not be applicable to any representations and substance reasonably satisfactory to warranties that already are qualified or modified by materiality in the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each Noteholdertext thereof.
Appears in 1 contract
Sources: Credit Agreement (Tutor Perini Corp)
First Amendment Effective Date. The amendments set forth in Article I This Amendment (subject to Section 4), and the obligation of each New Term Lender to make or acquire by continuation New Term Loans, shall become effective as of the date (the “First Amendment Effective Date”) when, and only when, each of on which the following conditions precedent shall have been satisfied:
(a) The Noteholders shall have received evidence reasonably satisfactory to them that the closing of the NYSE Merger Transactions has occurred or will occur substantially concurrently with the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;
(b) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders Administrative Agent shall have received (i) this Amendment, executed and delivered by the Administrative Agent and the Borrower and Persons committing herein to provide New Term Loans in an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of aggregate principal amount sufficient to refinance in full the last day of Existing Term Loans outstanding under the fiscal quarter most recently ended Credit Agreement immediately prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement reasonably satisfactory evidence that the Existing Term Loans shall have been paid in full or will be paid in full substantially simultaneously with the effectiveness of this Amendment, or replaced with the New ICE Parent Term Loans hereunder (and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on all accrued interest thereon and other amounts outstanding in respect thereof shall have been paid in full).
(b) The Administrative Agent shall have received all necessary or reasonably advisable amendments to, and a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate reaffirmation agreement with respect to, the existing collateral security and guarantee documents delivered under the Credit Agreement, such amendments and reaffirmation agreement to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;Administrative Agent.
(ec) All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, the Lead Arranger and the New Term Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have been paid to the extent due and invoiced to the Borrower.
(d) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders Administrative Agent shall have received (i) a certificate of the secretaryBorrower, an assistant secretary or other appropriate officer of New ICE Parent as of dated the First Amendment Effective Date, substantially in the form of Exhibit B hereto, with appropriate insertions and substance attachments and (ii) evidence reasonably satisfactory to the Required Holders, certifying (A) Administrative Agent that attached thereto each Loan Party is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of in good standing in its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;.
(ge) The Obligors Administrative Agent shall have paid all remaining reasonable fees and disbursements received the executed legal opinion of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid ▇▇, LLP, counsel to the Borrower and its Restricted Subsidiaries, in accordance with Section 2.1(eform and substance reasonably acceptable to the Administrative Agent.
(f) in connection with The Administrative Agent shall have received a solvency certificate, dated the preparation, negotiation, execution and delivery of this First Amendment Effective Date, substantially in the form of Exhibit L to the Credit Agreement, executed by the chief financial officer of the Borrower, certifying that on the First Amendment Effective Date, immediately after giving effect to this Amendment, the continuation by each Continuing Term Lender of any Existing Term Loans to be continued as New Term Loans on the First Amendment Effective Date, the making by each Additional Term Lender of any New Term Loans to be made on the First Amendment Effective Date and the transactions contemplated hereby; andapplication of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(g) The Administrative Agent shall have received, at least one business day prior to the First Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the First Amendment Effective Date and that the Administrative Agent reasonably determines (i) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (ii) has not been previously provided to the Administrative Agent.
(h) The Obligors Each of the representations and warranties made by any Loan Party in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the First Amendment Effective Date immediately prior to and immediately after giving effect to the incurrence of the New Term Loans and the use of proceeds thereof, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have paid been so true and correct as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing on the amendment fee required by Section 2.3 hereof First Amendment Effective Date immediately prior to each Noteholderand immediately after giving effect to this Amendment, the incurrence of the New Term Loans and the use of proceeds thereof.
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become effective as of the first date (such date of effectiveness, the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfied:satisfied (or waived in accordance with Section 9.02 of the Credit Agreement):
(a) The Noteholders the Administrative Agent shall have received evidence reasonably satisfactory to them that a counterpart signature page of this Amendment duly executed by Holdings, LuxCo 1, LuxCo 2, the closing of Borrowers, the NYSE Merger Transactions has occurred or will occur substantially concurrently with other Loan Parties, the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of Administrative Agent and Lenders who shall constitute the Required HoldersRevolving Lenders, would be adverse in any material respect to the rights or interests of Required Tranche A Terms Lenders, the NoteholdersRequired Tranche B Term Lenders and the Required Lenders;
(b) The Noteholders all fees and expenses required to be paid by (or on behalf of) the Borrowers to the Administrative Agent or any arranger pursuant to any fee letter with any Borrower or Holdings on or before the First Amendment Effective Date, and the Consent Fee (as defined below), shall have received a Subsidiary Guaranty been (together with or shall substantially contemporaneously be) paid in full in cash (and in the guaranty provided by New ICE Parent in Section 22 case of the Note Purchase Agreement as amended by this First Amendmentexpenses, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
extent invoiced at least two (d2) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended Business Days prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to or such shorter period agreed by the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth Borrowers in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holderstheir sole discretion);
(ec) The Noteholders the Administrative Agent shall have received evidence that Payor (as defined in the Indemnity Agreement) shall have delivered to Payee (as defined in the Indemnity Agreement) a certificate, signed by a Responsible Officer draft of each Obligor, this Amendment at least ten (10) Business Days (as defined in form and substance reasonably satisfactory the Indemnity Agreement) prior to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(fd) The Noteholders the representations and warranties of each Loan Party set forth in Section 3 of this Amendment shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent be true and correct in all material respects on and as of the First Amendment Effective DateDate after giving effect to this Amendment; provided that, in form and substance reasonably satisfactory to the Required Holdersextent that such representations and warranties specifically refer to an earlier date, certifying (A) that attached thereto is a they shall be true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and correct in all amendments thereto of New ICE Parent, certified material respects as of a recent date such earlier date; provided, further, that any representation and warranty that is qualified by the Secretary of State (materiality or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a reference to Material Adverse Effect shall be true and complete copy of the bylawscorrect in all respects, operating agreement taking into account such materiality or similar governing document of New ICE Parentreference to Material Adverse Effect, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective DateDate or on such earlier date, in form as the case may be, and substance reasonably satisfactory the Administrative Agent shall have received a certificate, dated the First Amendment Effective Date and signed by a Financial Officer or the President or a Vice President of the Swiss Borrower, confirming, on behalf of the Swiss Borrower, to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date knowledge of such certificationindividual, compliance with this paragraph (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each Noteholderd).
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become effective as of the date (the “First Amendment Effective Date”) when, first above written when and only when, each of the following conditions precedent shall have been satisfied:
(a) The Noteholders Administrative Agent shall have received evidence reasonably satisfactory to them that the closing all of the NYSE Merger Transactions has occurred or will occur substantially concurrently with the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date)following, without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;
(b) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”)at Administrative Agent’s office, duly executed and delivered and in form, substance and date reasonably satisfactory to Administrative Agent:
(i) this Amendment, executed by NYSEthe Borrower, by which NYSE guarantees all obligations under the Note Purchase Agreement Guarantors, each of the Lenders, the Administrative Agent, Issuing Bank, and the Notes (the “Obligations”)Swingline Lender;
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries replacement Notes for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, Lenders whose Commitment has changed executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth Borrower in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, signed by a Responsible Officer favor of each Obligorsuch Lender requesting such a Note, each Note in form a principal amount equal to such Lender’s Commitment and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct each Note dated as of the First Amendment Effective Date;
(fiii) The Noteholders shall have received from the Borrower and the Guarantors, such certificates of secretary, assistant secretary, manager, or general partner, as applicable, as the Administrative Agent may reasonably require, certifying (i) resolutions of its board of directors, managers or members (or their equivalent) authorizing the execution and performance of this Amendment which such Person is executing in connection herewith, (ii) the incumbency and signature of the officer executing this Amendment, and (iii) there has been no change in such Person’s Organization Documents from the copies of such Person’s Organization Documents most recently delivered to the Administrative Agent and Lenders or attaching any amendments or restatements thereof;
(iv) a certificate of the secretaryfrom Borrower (i) representing and warranting that, an assistant secretary or other appropriate officer of New ICE Parent on and as of the First Amendment Effective Date, before and after giving effect to the increase in Commitments resulting hereunder (A) no Default or Event of Default exists or would exist immediately after giving effect to the increase in the Commitments, (B) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the First Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (C) all financial covenants in Section 7.15 would be satisfied on a pro forma basis as of the most recent testing date and on the First Amendment Effective Date after giving effect to actual Credit Exposure on the First Amendment Effective Date, if any, (ii) ratifying and confirming each of the Loan Documents, (iii) agreeing that all Loan Documents shall apply to the Obligations as they are or may be increased by this Amendment and (iv) agreeing that its obligations and covenants under each Loan Document are otherwise unimpaired by this Amendment and shall remain in full force and effect; and
(v) an opinion from ▇▇▇▇▇ Lovells US LLP, counsel to each Loan Party and the General Partner, in form and substance reasonably satisfactory to the Required HoldersAdministrative Agent and its counsel.
(b) Borrower shall have paid:
(i) all recording, certifying handling, amendment and other fees required to be paid to Administrative Agent pursuant to any Loan Documents for which Borrower has received an invoice at least one (A1) that attached thereto is a true and complete copy of Business Day prior to the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and Effective Date;
(ii) a certificate the arrangement fee to be paid to the Arranger pursuant to the First Amendment Fee Letter, which arrangement fee once paid will be fully earned and nonrefundable;
(iii) the upfront fee to be paid to the Administrative Agent pursuant to the First Amendment Fee Letter for the account of each Lender increasing its Commitment, which upfront fee will be paid to each Lender increasing its Commitment that sends its signed signature page to this Amendment to the secretaryAdministrative Agent’s counsel by noon, New York time on September 7, 2011, which fee once paid will be fully earned and nonrefundable; and
(iv) the extension fee to be paid to the Administrative Agent pursuant to the First Amendment Fee Letter for the account of each Lender party to this Amendment, which extension fee will be paid to each Lender that sends its signed signature page to this Amendment to the Administrative Agent’s counsel by noon, New York time on September 7, 2011, which fee once paid will be fully earned and nonrefundable.
(c) Borrower shall have paid, in connection with such Loan Documents, all other fees and reimbursements required to be paid to Administrative Agent pursuant to any Loan Documents for which Borrower has received an assistant secretary or other appropriate officer of NYSE as of invoice at least one (1) Business Day prior to the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to otherwise due Administrative Agent and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable invoiced fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each NoteholderAdministrative Agent’s attorneys.
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become effective as of the first date (the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfied:satisfied (or waived by each Lender):
(a) The Noteholders Administrative Agent (or its counsel) shall have received evidence reasonably satisfactory to them that a counterpart signature page of this Amendment duly executed by the closing of Borrower, the NYSE Merger Transactions has occurred or will occur substantially concurrently with the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement Administrative Agent, each Lender (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect representing each lender party to the rights or interests of the Noteholders;Existing Credit Agreement) and each Tranche B Lender.
(b) The Noteholders Administrative Agent (or its counsel) shall have received a Subsidiary Guaranty written opinion (together with addressed to the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First AmendmentAdministrative Agent, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement Tranche B Lenders and the Notes Lenders and dated the First Amendment Effective Date) from (the “Obligations”);
(ci) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and & ▇▇▇▇▇▇ LLP, as special counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date Borrower and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for associate general counsel, deputy general counsel or the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation general counsel of the NYSE Merger Transactions as if such events had occurred on the first day of such periodBorrower or Anadarko, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligorcase, in form and substance reasonably satisfactory acceptable to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective DateAdministrative Agent;
(fc) The Noteholders Administrative Agent (or its counsel) shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate a responsible officer of New ICE Parent the General Partner, as general partner of and on behalf of the Borrower, dated the First Amendment Effective Date, in form attaching and substance reasonably satisfactory certifying as to (i) the Required Holders, certifying (A) that attached thereto is a true and complete copy resolutions of the articles or certificate Board of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy Directors of the bylaws, operating agreement or similar governing document of New ICE ParentGeneral Partner, as then in effect general partner of and as in effect at all times from on behalf of the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE ParentBorrower, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereundertransactions contemplated hereby, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate the organizational documents of the secretaryBorrower (which, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holdersextent filed with a Governmental Authority, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, shall be certified as of a recent date by the Secretary of State (or comparable such Governmental Authority), (iii) the good standing, existence or its equivalent of its jurisdiction the Borrower and (iv) certificates of organizationincumbency with respect to responsible officers of the Borrower;
(d) The Borrower shall have paid (i) to the Administrative Agent, and that for the same has not been amended since account of the Lenders party hereto, an extension fee equal to 0.04% of the aggregate outstanding principal amount of the Tranche A Loans of such Lender under the Existing Credit Agreement as of the date hereof prior to giving effect to this Amendment, (ii) to the Administrative Agent, for the account of each Tranche B Lender, on the First Amendment Effective Date a fee equal to 0.075% of the Tranche B Commitments of such certification, (B) that attached thereto is a true and complete copy of Tranche B Lender on the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificateFirst Amendment Effective Date, and (Ciii) to the Administrative Agent, the Arrangers and the Lenders, as applicable, and to the extent invoiced at least two (2) Business Days prior to the First Amendment Effective Date (unless the Borrower otherwise consents), all fees and other amounts due and payable on the First Amendment Effective Date, including reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under Section 10.03 of the Amended Credit Agreement;
(e) To the extent reasonably requested by the Administrative Agent or any Lender in writing at least ten (10) business days prior to the First Amendment Effective Date, the Administrative Agent or such Lender, as the case may be, shall have received, at least three (3) Business Days prior to the First Amendment Effective Date, all documentation and other information required under applicable “know-your-customer” and anti-money laundering rules and regulations, including but not restricted to the USA Patriot Act, that attached thereto is was to ensure compliance therewith and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Administrative Agent or any Lender that has requested in writing a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification;
(f) The representations and warranties set forth in Section 4 are true and complete copy of resolutions adopted accurate in all material respects (unless qualified by the board of directors (materiality or similar governing bodyMaterial Adverse Change, in which case such representation and warranty is true and accurate in all respects) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, on and as of the First Amendment Effective Date (except to the incumbency extent that such representations and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described abovewarranties relate solely to an earlier date);
(g) The Obligors There shall not have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated herebyoccurred a Material Adverse Change; and
(h) The Obligors Administrative Agent (or its counsel) shall have paid received a certificate of a responsible officer of the amendment fee required by Section 2.3 hereof General Partner, as general partner and on behalf of the Borrower, certifying as to each Noteholderthe satisfaction of conditions specified in Sections 5(f) and (g).
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become effective as upon the execution and delivery hereof by each Loan Party, the Administrative Agent and each of the Lenders; provided that Section 1 hereof shall not become effective until the date (the “First Amendment Effective Date”) when, and only when, each of when the following additional conditions precedent shall have also been satisfied:
(a) The Noteholders the Administrative Agent shall have received evidence reasonably satisfactory to them that the closing a certificate of a Responsible Officer of the NYSE Merger Transactions has occurred or will occur substantially concurrently with Company dated the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (date hereof, certifying as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholdersrepresentations and warranties made by each Loan Party contained in Section 3 hereof;
(b) The Noteholders the Administrative Agent shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), fee letter duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes Company (the “ObligationsAmendment Fee Letter”);
(c) The Noteholders the Administrative Agent shall have received a legal opinion from counsel to Assignment and Assumptions duly executed and delivered by the Company, New ICE Parent PNC Bank, National Association and NYSEHSBC Bank USA, N.A., in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLPeach case, as counsel to setting forth assignments of the Required HoldersTerm Loans consistent with the allocations set forth on Annex II attached hereto (collectively, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request“First Amendment Assignments”);
(d) The Noteholders the Administrative Agent and the Lenders shall have received all fees to be paid on the First Amendment Effective Date pursuant to the Amendment Fee Letter; and
(ie) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended Lenders shall have received at least three Business Days prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect all documentation and other information regarding the Loan Parties required by Governmental Authorities under applicable “know your customer and anti-money laundering rules and regulations, including, without limitation, the Patriot Act and the Canadian AML Acts, in each case to the consummation extent reasonably requested of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended Borrower at least 10 Business Days prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each Noteholder.
Appears in 1 contract
Sources: Credit Agreement (Morningstar, Inc.)
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become effective as of the first date (the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfied:satisfied (or waived by the Administrative Agent):
(a) The Noteholders the Administrative Agent shall have received evidence reasonably satisfactory a counterpart signature page of this Amendment duly executed by Holdings, the Borrower and each Loan Party, the Administrative Agent, each New Term Lender and certain other Lenders, who shall, collectively with the New Term Lenders, represent (immediately after giving effect to them this Amendment) the Required Lenders;
(b) the Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party referred to in clause (a), in substantially the form delivered on the Closing Date (i) certifying that the closing articles of formation (or equivalent document) of such Loan Party, certified by the appropriate Governmental Authority of the NYSE Merger Transactions state of formation of such Loan Party, and the operating agreement (or equivalent document) of such Loan Party, either (A) has occurred not been amended since the Closing Date or will occur substantially concurrently (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the First Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 5;
(c) to the extent requested by the Administrative Agent, the Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing Bank on the First Amendment Effective Date, a customary written opinion of (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors;
(d) to the extent requested by the Administrative Agent, the Administrative Agent shall have received a certificate of good standing (to the extent such concept exists in the relevant jurisdiction) with respect to such Loan Parties referred to in clause (a) (above) certified as of a recent date by the appropriate Governmental Authority of the state of formation;
(e) to the extent requested by the Administrative Agent, the Administrative Agent shall have received all documentation and other information, at least two Business Days prior to the First Amendment Effective Date, required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in each case to the extent so requested no less than ten Business Days prior to the First Amendment Effective Date);
(f) all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent (including pursuant to Section 9.03 of the Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any engagement letter with the occurrence Borrower on or before the First Amendment Effective Date shall have been (or shall substantially contemporaneously be) paid in full in cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the First Amendment Effective Date);
(g) the Administrative Agent shall have received a Borrowing Request in respect of the New Term Loans to be made on the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination requirements of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;
(b) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Credit Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors no Event of Default under Sections 7.01(a), (f) or (g) of the Credit Agreement shall exist immediately prior to or after giving effect to the effectiveness of this Amendment. For purposes of determining whether the conditions specified in this Section 5 have paid been satisfied on the amendment fee date hereof, by funding the New Term Loans, the Administrative Agent and each New Term Lender that has executed this Agreement (or an Assignment and Assumption on the date hereof) shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other matter required by Section 2.3 hereof to each Noteholderhereunder.
Appears in 1 contract
Sources: First Incremental Amendment (Isos Acquisition Corp.)
First Amendment Effective Date. The amendments set forth in Article I This First Amendment shall become effective as of the first date (the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfiedsatisfied or waived by the 2018 Refinancing Term Lenders and the Revolving Credit Lenders:
(ai) The Noteholders the Administrative Agent shall have received evidence reasonably satisfactory to them that the closing counterparty signature pages of this Amendment from each of the NYSE Merger Transactions has occurred or will occur substantially concurrently with Borrower, each Guarantor and each Lender;
(ii) the occurrence Administrative Agent shall have received (A) sufficient copies of each Organizational Document of each Loan Party, as applicable, and, to the extent applicable, certified as of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;
(b) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date prior thereto by the Secretary of State (or comparable appropriate Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, ; (B) that attached thereto is a true signature and complete copy incumbency certificates of the bylaws, operating agreement officers of such Persons executing the Loan Documents on behalf of each Loan Party; (C) copies of resolutions of the Board of Directors or similar governing document body of New ICE Parent, as then in effect each Loan Party approving and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and the other Loan Documents to which it is a party or by which it or its joining assets may be bound as of the First Amendment Effective Date and, in respect of the U.K. Borrower, authorizing the Company to act as its agent in connection with the Loan Documents, certified as of the First Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (D) other than with respect to the Note Purchase Agreement and guaranty U.K. Borrower, a good standing certificate from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, dated as of the obligations thereunderFirst Amendment Effective Date or a recent date prior thereto and (E) to the extent requested by the Administrative Agent in respect of the U.K. Borrower, (i) copies of resolutions of its shareholders approving the terms of, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing transactions contemplated by this First Amendment, and attaching all such copies of the documents described above; Amendment and (ii) a certificate signed by a Responsible Officer of the secretaryU.K. Borrower certifying that the U.K. Borrower Sublimit would not cause any borrowing or similar limit binding on it to be exceeded;
(iii) the Administrative Agent shall have received a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, an assistant secretary or other appropriate officer of NYSE counsel for the Loan Parties, dated as of the First Amendment Effective Date, in a form and substance reasonably satisfactory to consistent with the Required Holders, certifying (A) that attached thereto is a true and complete copy of opinion delivered by ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP on the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described aboveRestatement Date;
(giv) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Company certifying (a) that the conditions specified in Sections 5(b) and (c) have been satisfied and (b) that there has been no event or circumstance since September 29, 2018 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(v) Concurrently with the making of the 2018 Refinancing Term Loans, (a) the entire aggregate principal amount of the 2017 Refinancing Term Loans and (b) all accrued interest, fees and other amounts accrued immediately prior to this First Amendment becoming effective in connection therewith shall have been paid in full and all Interest Periods in respect thereof shall have been terminated;
(vi) Concurrently with the availability of the 2018 Revolving Credit Facility, (i) the Revolving Credit Commitments in effect immediately prior to this First Amendment becoming effective shall have been terminated and the entire aggregate principal amount of the all Revolving Credit Loans outstanding immediately prior to this First Amendment becoming effective shall have been paid in full and (ii) all accrued interest, fees and other amounts accrued prior to this First Amendment becoming effective in connection therewith shall have been paid in full and all Interest Periods in respect thereof shall have been terminated;
(vii) Any fees required to be paid pursuant to the Fee Letter on or before the First Amendment Effective Date shall have been paid by the Company to the Administrative Agent on the First Amendment Effective Date);
(viii) The Obligors Company shall have delivered a Committed Loan Notice with respect to the 2018 Refinancing Term Loans, and a notice of prepayment with respect to the Existing Term Loans, in each case, in accordance with the Credit Agreement;
(ix) The Company shall have paid all remaining reasonable fees fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ and & ▇▇▇▇▇▇▇▇ LLP (it is hereby expressly acknowledged and agreed that any fees paid pursuant to this clause (ix) shall be paid by the Company to the Administrative Agent on the First Amendment Effective Date);
(x) The Loan Parties shall have provided the documentation and other information to the Administrative Agent and Lenders that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, to the extent the Company shall have received written requests therefor at least three (3) Business Days prior to the First Amendment Effective Date; and
(xi) The conditions specified in Section 2.19 of the Credit Agreement with respect to the Refinancing shall have been satisfied (it being understood and agreed that, as of the date hereof, such conditions shall be deemed to be satisfied).
(b) The First Amendment Effective Date shall not previously paid occur if any of the conditions set forth or referred to in this Section 6 has not been satisfied or waived in accordance with Section 2.1(e) in connection with 10.01 of the preparationCredit Agreement at or prior to 5:00 p.m., negotiationNew York City time, execution and delivery on December 17, 2018 (it being understood that any such failure of this the First Amendment Effective Date to occur by such date will not affect any rights or obligations of any Person under the existing Credit Agreement). The Administrative Agent shall promptly notify the Company and the transactions contemplated hereby; and
(h) The Obligors shall have paid Lenders of the amendment fee required by Section 2.3 hereof to each NoteholderFirst Amendment Effective Date.
Appears in 1 contract
Sources: Refinancing Amendment (Hologic Inc)
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become be binding upon the Administrative Agent, Borrower, and the Lenders on the last day upon which (a) counterparts of this Amendment shall have been executed and delivered to Administrative Agent by Borrower, Administrative Agent, and Requisite Lenders, or when Administrative Agent shall have received, telecopied, telexed, or other evidence satisfactory to it that all such parties have executed and are delivering to Administrative Agent counterparts thereof, at which time this Amendment shall be deemed effective as of the date December 30, 2008 (the “First Amendment Effective Date”); (b) whenBorrower shall have delivered to Administrative Agent copies (certified by the Secretary or Assistant Secretary of Borrower) of all corporate action taken by Borrower to authorize the execution, delivery, and only when, each performance of the following conditions precedent this Amendment; (c) Borrower’s counsel shall have been satisfied:
delivered a favorable legal opinion regarding the enforceability of this Amendment and such other matters incident to the transactions contemplated hereby as Administrative Agent may request; (ad) The Borrower and the requisite Noteholders shall have received evidence reasonably approved the Second Omnibus Amendment to the Note Agreements and shall have executed and delivered the Second Omnibus Amendment to the Note Agreements, which shall be in all respects in form and substance satisfactory to them that Administrative Agent and Requisite Lenders; (e) Borrower shall have paid to each Consenting Lender (by payment to Administrative Agent for the closing account of the NYSE Merger Transactions has occurred or will occur substantially concurrently with the occurrence each Consenting Lender) an Amendment Fee in an amount equal to 0.50% of such Consenting Lender’s Commitment on the First Amendment Effective Date in accordance with the Merger Agreement Date; (as in effect on the Execution Date), without any amendment or modification thereto that, in f) Borrower shall have paid the reasonable determination fees, expenses, and disbursements of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;
(b) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as LLP which are reflected in statements of such counsel rendered on or prior to the Required Holders, addressing date of this Amendment; and (g) Borrower shall have delivered such matters other documents or certifications as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, Administrative Agent may reasonably request;
(d) The Noteholders . Notwithstanding the foregoing provisions, for purposes of determining compliance with the conditions specified in this Paragraph 3, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended notice from such Lender prior to the proposed First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and specifying its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each Noteholderobjection thereto.
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I This Amendment, and the obligation of each New Term Lender to make or acquire by continuation New Term Loans, shall become effective as of the date (the “First Amendment Effective Date”) when, and only when, each of on which the following conditions precedent shall have been satisfied:
(a) The Noteholders shall have received evidence reasonably satisfactory to them that the closing of the NYSE Merger Transactions has occurred or will occur substantially concurrently with the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;
(b) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders Administrative Agent shall have received (i) this Amendment, executed and delivered by the Administrative Agent, the Borrower and each other Loan Party, (ii) a Lender Addendum (x) in the form of Exhibit A attached hereto, executed by each Additional Term Lender and (y) in the form of Exhibit B attached hereto, executed by each Continuing Term Lender, collectively, committing herein to provide New Term Loans in an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of aggregate principal amount sufficient to refinance in full the last day of Existing Term Loans outstanding under the fiscal quarter most recently ended Credit Agreement immediately prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis and (iii) reasonably satisfactory evidence that the Existing Term Loans shall have been paid in full or will be paid in full substantially simultaneously with the effectiveness of this Amendment, or replaced with the New Term Loans hereunder (and all accrued interest thereon and other amounts outstanding in respect thereof shall have been paid in full).
(b) All costs, fees and expenses required to give effect be paid by the Borrower to the consummation Administrative Agent, the Lead Arranger and the New Term Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior legal counsel to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect Administrative Agent) shall have been paid to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect extent due and invoiced to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;Borrower.
(ec) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders Administrative Agent shall have received (i) a certificate of the secretaryeach Loan Party, an assistant secretary or other appropriate officer of New ICE Parent as of dated the First Amendment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and substance attachments and (ii) evidence reasonably satisfactory to the Required Holders, certifying (A) Administrative Agent that attached thereto each Loan Party is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of in good standing in its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;.
(gd) The Obligors Administrative Agent shall have paid all remaining reasonable fees and disbursements received the executed legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower and ▇▇▇▇▇▇ LLP not previously paid its Restricted Subsidiaries, in accordance with Section 2.1(eform and substance reasonably acceptable to the Administrative Agent.
(e) The Administrative Agent shall have received a solvency certificate, dated the First Amendment Effective Date, substantially in connection with the preparationform of Exhibit L to the Credit Agreement, negotiationexecuted by the chief financial officer of the Borrower, certifying that on the First Amendment Effective Date, immediately after giving effect to this Amendment, the continuation by each Continuing Term Lender of any Existing Term Loans to be continued as New Term Loans on the First Amendment Effective Date, the making by each Additional Term Lender of any New Term Loans to be made on the First Amendment Effective Date and the application of the proceeds thereof, the Borrower and its Subsidiaries, on a consolidated basis, are solvent.
(f) The Administrative Agent shall have received, at least one business day prior to the First Amendment Effective Date, all documentation and other information about any Loan Party reasonably requested by the Administrative Agent in writing at least three business days prior to the First Amendment Effective Date and that the Administrative Agent reasonably determines is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation (provided that, upon the execution and delivery by such Lender of a Lender Addendum, the condition set forth in this clause (h) shall be deemed to be satisfied).
(g) Each of the representations and warranties made by any Loan Party in or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the First Amendment Effective Date immediately prior to and immediately after giving effect to the incurrence of the New Term Loans and the transactions contemplated hereby; anduse of proceeds thereof, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date.
(h) The Obligors No Default or Event of Default shall have paid occurred and be continuing on the amendment fee First Amendment Effective Date immediately prior to and immediately after giving effect to this Amendment, the incurrence of the New Term Loans and the use of proceeds thereof.
(i) The Administrative Agent shall have received (a) “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property and (b) in the event any such Mortgaged Property is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower and the applicable Loan Party and (y) evidence of flood insurance as required by Section 2.3 hereof to each Noteholderthe Credit Agreement.
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I obligations of the Lenders to make Term A Loans shall not become effective as of until the date (the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfied:is satisfied (or waived in accordance with Section 9.02):
(a) The Noteholders shall have received evidence reasonably satisfactory to them that the closing of the NYSE Merger Transactions has occurred Administrative Agent (or will occur substantially concurrently with the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;
(bits counsel) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet from each party hereto either (A) a counterpart of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments signed on a Pro Forma Basis to give effect behalf of such party or (B) written evidence satisfactory to the consummation Administrative Agent (which may include fax or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of the NYSE Merger Transactions as if such events had occurred on such date First Amendment and (ii) an unaudited consolidated income statement duly executed copies of New ICE Parent the Loan Guaranty, the Security Agreement and its Subsidiaries for such other Loan Documents required by the period of four fiscal quarters most recently ended prior to Administrative Agent and such other certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the transactions contemplated by the First Amendment Effective Date showing adjustments on and the other Loan Documents, including any promissory notes requested by a Pro Forma Basis Lender pursuant to give effect Section 2.10 of this Agreement payable to the consummation order of each such requesting Lender and a written opinion of the NYSE Merger Transactions as if such events had occurred on the first day of such periodLoan Parties’ counsel, together with an Officer’s Certificate with respect addressed to the period covered by such financial statementsAdministrative Agent, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of Issuing Bank and the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;Lenders.
(eb) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders Administrative Agent shall have received (i) a certificate of the secretaryBorrower, an assistant secretary dated the First Amendment Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors, members or other body authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party and, in the case of the Borrower, its Financial Officers, and (C) contain appropriate officer attachments, including the charter, articles or certificate of New ICE Parent organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of the Borrower and a true and correct copy of its bylaws or operating, management or partnership agreement, or other organizational or governing documents, and (ii) a long form good standing certificate for the Borrower from its jurisdiction of organization.
(c) The Administrative Agent shall have received a certificate, signed by a Financial Officer of the Borrower, dated as of the First Amendment Effective Date (i) stating that no Default has occurred and is continuing, (ii) stating that the representations and warranties contained in the Loan Documents are true and correct as of such date, and (iii) certifying as to any other factual matters as may be reasonably requested by the Administrative Agent.
(d) The Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses required to be reimbursed for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the First Amendment Effective Date. All such amounts will be paid with proceeds of Loans made on the First Amendment Effective Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the First Amendment Effective Date.
(e) The Administrative Agent shall have received the results of a recent lien search in the jurisdiction of organization of Borrower and each jurisdiction where assets of the Borrower are located, and such search shall reveal no Liens on any of the assets of the Borrower except for liens permitted by Section 6.02 or discharged on or prior to the First Amendment Effective Date pursuant to a pay-off letter or other documentation satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a solvency certificate signed by a Financial Officer dated the First Amendment Effective Date in form and substance reasonably satisfactory to the Required HoldersAdministrative Agent.
(g) The Administrative Agent, certifying (A) that attached thereto is a true and complete copy the Collateral Agent, the representative of the articles or certificate holders of incorporationthe Senior Notes and the other parties thereto shall have entered into the Intercreditor Agreement.
(h) The Administrative Agent shall have received duly executed amendments to the Senior Notes, certificate containing terms and conditions satisfactory in all respects to the Administrative Agent.
(i) The Administrative Agent and its counsel shall have completed all legal due diligence, the results of formation or other organizational document which shall be satisfactory to Administrative Agent in its sole discretion.
(i) The Administrative Agent and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certificationeach requesting Lender shall have received, (Bx) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred least five (5) days prior to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, all documentation and other information regarding the Borrower requested in form connection with applicable “know your customer” and substance reasonably satisfactory anti-money laundering rules and regulations, including the USA PATRIOT Act, to the Required Holders, certifying (A) that attached thereto is a true and complete copy extent requested in writing of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by Borrower at least ten (10) days prior to the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificateEffective Date, and (Cy) that attached thereto is a true properly completed and complete copy of resolutions adopted by signed IRS Form W-8 or W-9, as applicable, for Borrower, and (ii) to the board of directors (or similar governing body) of NYSE, authorizing extent the execution, delivery and performance of Borrower qualifies as a guaranty “legal entity customer” under the Note Purchase AgreementBeneficial Ownership Regulation, and as at least five (5) days prior to the incumbency and genuineness of First Amendment Effective Date, any Lender that has requested, in a written notice to the signature of each officer of NYSE executing such guarantyBorrower at least the (10) days prior to the First Amendment Effective Date, and attaching all such copies of a Beneficial Ownership Certification in relation to the documents described above;
(g) The Obligors Borrower shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with received such Beneficial Ownership Certification (provided that, upon the preparation, negotiation, execution and delivery by such Lender of its signature page to the First Amendment, the condition set forth in this First Amendment and the transactions contemplated hereby; andclause (ii) shall be deemed to be satisfied).
(hk) The Obligors Administrative Agent shall have paid received such other documents as the amendment fee required by Section 2.3 hereof to each NoteholderAdministrative Agent, the Issuing Bank, any Lender or their respective counsel may have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Marcus Corp)
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become effective as of the first date (the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfied:
(a) The Noteholders Lead Arranger and the Administrative Agent shall have received evidence reasonably satisfactory to them that the closing a counterpart signature page of this Amendment duly executed by each of the NYSE Merger Transactions has occurred or will occur substantially concurrently with Borrower, the occurrence Administrative Agent, the Issuing Bank and each Lender listed on the signature pages hereto constituting the Required Lenders.
(b) The representations and warranties set forth in Sections 3(b) and 3(c) of this Amendment shall be true and correct in all respects on and as of the First Amendment Effective Date, and the Lead Arranger and the Administrative Agent shall have received a certificate (in form and substance reasonably acceptable to the Lead Arranger Administrative Agent), dated as of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination and signed by a Financial Officer of the Required HoldersBorrower, would be adverse in any material respect certifying as to the rights or interests of the Noteholders;
(b) The Noteholders shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed such representations and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);warranties.
(c) The Noteholders Each Loan Party not a party hereto shall have received entered into a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be reaffirmation agreement in form and substance reasonably satisfactory to the Required Holders;Lead Arranger and the Administrative Agent.
(ed) The Noteholders Borrower shall have received a certificate, signed by a Responsible Officer paid (i) to the Administrative Agent (A) for the account of each ObligorRevolving Lender that executes and delivers a counterpart signature page to this Amendment at or prior to 5:00 p.m., New York City time, on May 24, 2018 (or such later time as the Administrative Agent, the Lead Arranger and the Borrower shall agree) (the “Revolving Loan Consent Deadline”), a consent fee in form an aggregate amount equal to 0.25% of the aggregate Revolving Commitments held by such Revolving Lender as of the Revolving Loan Consent Deadline and substance reasonably satisfactory (B) for the account of each Term Lender that executes and delivers a counterpart signature page to this Amendment at or prior to 5:00 p.m., New York City time, on June 5, 2018 (or such later time as the Administrative Agent, the Lead Arranger and the Borrower shall agree) (the “Term Loan Consent Deadline”), a consent fee in an aggregate amount equal to 0.25% of the aggregate principal amount of the Term Loans held by such Term Lender as of the Term Loan Consent Deadline and (ii) all other fees and amounts due and payable pursuant to this Amendment and/or any letter agreements or fee letters by and between the Borrower and the Lead Arranger (collectively, “Engagement Letter”), including, to the Required Holdersextent invoiced, certifying that reimbursement or payment of documented and reasonable out-of-pocket expenses in connection with this Amendment and any other out-of-pocket expenses of the representations Lead Arranger and warranties set forth in Article III hereof are true the Administrative Agent required to be paid or reimbursed pursuant to the Credit Agreement or the Engagement Letter. The Administrative Agent shall notify the Borrower and correct as the Lenders hereto of the First Amendment Effective Date;
(f) The Noteholders Date and such notice shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of the First Amendment Effective Date, in form be conclusive and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each Noteholderbinding.
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become effective as of the first date (the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfied:satisfied (or waived in accordance with Section 9.02 of the Credit Agreement):
(a) The Noteholders the Administrative Agent shall have received evidence reasonably satisfactory to them that a counterpart signature page of this Amendment duly executed by Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the closing of Borrower, the NYSE Merger Transactions has occurred or will occur substantially concurrently with the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of Administrative Agent and Lenders who shall constitute the Required HoldersRevolving Lenders, would be adverse in any material respect to the rights or interests of Required Tranche A Terms Lenders, the NoteholdersRequired Tranche B Term Lenders and the Required Lenders;
(b) The Noteholders all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent or any arranger pursuant to any fee letter with the Borrower on or before the First Amendment Effective Date, and the Consent Fee (as defined below), shall have received a Subsidiary Guaranty been (together with or shall substantially contemporaneously be) paid in full in cash (and in the guaranty provided by New ICE Parent in Section 22 case of the Note Purchase Agreement as amended by this First Amendmentexpenses, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended extent invoiced at least three Business Days prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to or such shorter period agreed by the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and Borrower in its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holderssole discretion);
(ec) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties of each Loan Party set forth herein and in Article III hereof are the Loan Documents shall be true and correct in all material respects on and as of the First Amendment Effective Date;
(f) The Noteholders ; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects, taking into account such materiality or reference to Material Adverse Effect, on the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles Date or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of on such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parentearlier date, as then in the case may be;
(d) at the time of and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and as in effect at all times from be continuing; and
(e) the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such Administrative Agent shall have received a certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of dated the First Amendment Effective Date, in form Date and substance reasonably satisfactory to signed by a Financial Officer or the Required Holders, certifying (A) that attached thereto is President or a true and complete copy Vice President of the articles or certificate of incorporationBorrower, certificate of formation or other organizational document confirming compliance with the conditions set forth in paragraphs (c) and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authorityd) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with this Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each Noteholder4.
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become effective as of the first date (the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfied:satisfied (or waived by the Administrative Agent):
(a) The Noteholders the Administrative Agent shall have received evidence reasonably satisfactory a counterpart signature page of this Amendment duly executed by VPI and each Loan Party, the Administrative Agent and each New Term Lender;
(b) the Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party referred to them in clause (a), in substantially the form delivered on the Closing Date (i) certifying that the closing articles of formation (or equivalent document) of such Loan Party, certified by the appropriate Governmental Authority of the NYSE Merger Transactions state of formation of such Loan Party, and the operating agreement (or equivalent document) of such Loan Party, either (A) has occurred not been amended since the Closing Date or will occur (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the First Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 6;
(c) to the extent requested by the Administrative Agent, the Administrative Agent (or its counsel) shall have received, on behalf of itself and the New Term Lenders on the First Amendment Effective Date, a customary written opinion of (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in its capacity as special New York counsel for VPI and the other Loan Parties, (ii) Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ LLP, in its capacity as special Delaware counsel for VPI and the other Loan Parties and (iii) Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in its capacity as special Canada counsel for VPI and the other Loan Parties;
(d) to the extent requested by the Administrative Agent, the Administrative Agent shall have received a certificate of good standing (to the extent such concept exists in the relevant jurisdiction) with respect to such Loan Parties referred to in clause (a) (above) certified as of a recent date by the appropriate Governmental Authority of the state of formation;
(e) to the extent requested by the Administrative Agent, the Administrative Agent shall have received all documentation and other information, at least two Business Days prior to the First Amendment Effective Date, required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in each case to the extent so requested no less than ten Business Days prior to the First Amendment Effective Date);
(f) all fees and expenses required to be paid by (or on behalf of) VPI to the Administrative Agent (including pursuant to Section 10.03 of the Credit Agreement and pursuant to Section 8 hereof) or any arranger pursuant to any engagement letter with VPI on or before the First Amendment Effective Date shall have been (or shall substantially concurrently with contemporaneously be) paid in full in cash (and in the occurrence case of expenses, to the extent invoiced at least three Business Days prior to the First Amendment Effective Date);
(g) the Administrative Agent shall have received a Borrowing Request in respect of the New Term Loans to be made on the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination requirements of the Required Holders, would be adverse in any material respect to the rights or interests of the NoteholdersCredit Agreement;
(bh) The Noteholders no Specified Event of Default shall exist at the applicable time referred to in Section 2.22(a)(xii) of the Credit Agreement; and
(i) the Administrative Agent shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officercustomary officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders shall have received (i) a certificate of the secretaryBorrower. For purposes of determining whether the conditions specified in this Section 5 have been satisfied on the date hereof, an assistant secretary by funding the New Term Loans, the Administrative Agent and each New Term Lender that has executed this Agreement shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other appropriate officer of New ICE Parent as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee matter required by Section 2.3 hereof to each Noteholderhereunder.
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I This Amendment (subject to Section 5) shall become effective as of the date (the “First Amendment Effective Date”) when, and only when, each of on which the following conditions precedent shall have been satisfied:
(a) The Noteholders Administrative Agent shall have received evidence reasonably satisfactory to them that this Amendment, executed and delivered by the closing of Administrative Agent, the NYSE Merger Transactions has occurred or will occur substantially concurrently with Borrower and the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination of the Required Holders, would be adverse in any material respect to the rights or interests of the Noteholders;Existing ABL Lenders.
(b) The Noteholders All costs, fees and expenses required to be paid by the Borrower to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger and bookrunner for this Amendment, and the Existing ABL Lenders in connection with the Amended Credit Agreement and this Amendment (including the reasonable and documented fees and expenses of legal counsel to the Administrative Agent) shall have received a Subsidiary Guaranty (together with been paid to the guaranty provided by New ICE Parent in Section 22 of extent due and invoiced to the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);Borrower.
(c) The Noteholders Administrative Agent shall have received a legal opinion from counsel received, at least one business day prior to the CompanyFirst Amendment Effective Date, New ICE Parent all documentation and NYSE, other information about any Loan Party reasonably requested by the Administrative Agent in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended writing at least three business days prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to and that the consummation of Administrative Agent reasonably determines (i) is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the NYSE Merger Transactions as if such events had occurred on such date PATRIOT Act, and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior has not been previously provided to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;Administrative Agent.
(ed) The Noteholders shall have received a certificate, signed by a Responsible Officer Each of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth made by any Loan Party in Article III hereof are or pursuant to this Amendment, the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of the First Amendment Effective Date;Date as if made on and as of such date, except to the extent expressly made as of an earlier date, in which case such representations and warranties shall have been so true and correct as of such earlier date.
(fe) The Noteholders No Default or Event of Default shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of occurred and be continuing on the First Amendment Effective Date, in form and substance reasonably satisfactory Date or after giving effect to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining any extensions of credit requested to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty be made under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing Amended Credit Agreement on such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each Noteholderdate.
Appears in 1 contract
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become effective as of the first date (the “First Amendment Effective Date”) when, and only when, on which each of the following conditions precedent shall have been satisfied:satisfied (or waived by the Administrative Agent):
(a) The Noteholders the Administrative Agent (or its counsel) shall have received evidence reasonably satisfactory to them that (x) a counterpart signature page of this Amendment duly executed by Holdings, the closing of Parent Borrower and each Loan Party, the NYSE Merger Transactions has occurred or will occur Administrative Agent, each 2024 Refinancing Term Loan Lender party hereto and each Amendment No. 1 Replacement and Incremental Revolving Lender and (y) from each Converting Lender, a Converting Lender Consent substantially concurrently with the occurrence of the First Amendment Effective Date in accordance with the Merger Agreement (as in effect on the Execution Date), without any amendment or modification thereto that, in the reasonable determination form of Exhibit B hereto (the Required Holders“Converting Lender Consent”) (in each case, would be adverse in any material respect to the rights including by way of facsimile or interests of the Noteholdersother electronic transmission);
(b) The Noteholders to the extent requested by the Administrative Agent, the Administrative Agent (or its counsel) shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 of the Note Purchase Agreement as amended by this First Amendment, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, certificate signed by a Responsible Officer of each ObligorLoan Party, certifying on behalf of such Loan Party referred to in clause (a), in substantially the form and substance reasonably satisfactory to delivered on the Required Holders, Closing Date (i) certifying that the representations articles of formation (or equivalent document) of such Loan Party, certified by the appropriate Governmental Authority of the state of formation of such Loan Party, and warranties set forth in Article III hereof are the operating agreement (or equivalent document) of such Loan Party, either (A) has not been amended since the prior date of delivery or (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as true and correct complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the First Amendment Effective DateDate to be true and correct and in force and effect as of such date, (iii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this Section 6;
(fc) The Noteholders to the extent requested by the Administrative Agent, the Administrative Agent (or its counsel) shall have received (i) a certificate received, on behalf of itself and the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of 2024 Lenders on the First Amendment Effective Date, a customary written opinion of Bass, B▇▇▇▇ & S▇▇▇ PLC, in form its capacity as special Delaware, New York and substance reasonably satisfactory Tennessee counsel to the Required HoldersLoan Parties;
(d) to the extent requested by the Administrative Agent, certifying the Administrative Agent (Aor its counsel) that attached thereto is shall have received a true and complete copy of the articles or short form certificate of incorporation, good standing or equivalent certificate of formation or other organizational document and all amendments thereto of New ICE Parent, (to the extent such concept exists in the relevant jurisdiction) with respect to the Loan Parties referred to in clause (a) (above) certified as of a recent date by the Secretary of State (or comparable appropriate Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy Authority of the bylaws, operating agreement or similar governing document state of New ICE Parent, as then in effect and as in effect at all times from formation;
(e) to the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted extent requested by the board of directors (or similar governing body) of New ICE ParentAdministrative Agent, authorizing the executionAdministrative Agent shall have received all documentation and other information, delivery and performance of this First Amendment and its joining at least two Business Days prior to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (including if any Borrower qualifies as a “legal entity customer” under the “Beneficial Ownership Regulations” (31 CFR §1010.230), a Beneficial Ownership Certification in form and substance reasonably satisfactory relation to the Required Holders, certifying (A) that attached thereto is Borrower). “Beneficial Ownership Certification” means a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as certification regarding individual beneficial ownership solely to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee extent required by Section 2.3 hereof to each Noteholder.31 CFR §1010.230;
Appears in 1 contract
Sources: Credit Agreement (Ryman Hospitality Properties, Inc.)
First Amendment Effective Date. The amendments set forth in Article I This Amendment shall become deemed effective as of the date hereof (the “First Amendment Effective Date”) when, and only when, each upon satisfaction of the following conditions precedent shall have been satisfiedconditions:
(a) The Noteholders the execution and delivery of this Amendment by the undersigned Loan Parties, Agent and all the Lenders (including the Departing Lenders);
(b) Agent shall have received evidence reasonably a certificate of a duly authorized officer of or other person authorized to represent each Loan Party, certifying (i) that attached copies of such Loan Party’s Organization Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents to which such Loan Party is a party is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; (iii) all governmental and other third party approvals and consents, if any, with respect to this Amendment have been obtained and are in effect; and (iv) to the title, name and signature of each Person authorized to sign the Loan Documents to which such Loan Party is a party. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Loan Party in writing;
(c) Agent shall have received certificates, in form and substance satisfactory to them that it, from a Responsible Officer of each Loan Party certifying that, after giving effect to this Amendment and the closing transactions hereunder, (i) the Canadian Borrower and its consolidated Restricted Subsidiaries, taken as a whole, and the U.S. Borrower and its consolidated Restricted Subsidiaries, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 of the NYSE Merger Transactions Credit Agreement with respect to such Loan Party are true and correct in all material respects (or, with respect to representations and warranties qualified by materiality, in all respects) (except for representations and warranties that expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or, with respect to representations and warranties qualified by materiality, in all respects) as of such earlier date); and (iv) such Loan Party has occurred complied with all agreements and conditions to be satisfied by it under the Loan Documents;
(d) Agent shall have received satisfactory evidence that Agent shall have a valid and perfected security interest in the Collateral (including delivery to Agent of all instruments needed for filings or will occur substantially concurrently with recordations necessary to perfect its Liens in the occurrence Collateral);
(e) Agent shall have received UCC, PPSA, and Lien searches and other evidence satisfactory to Agent that its Liens are the only Liens upon the ABL Collateral, except Permitted Liens;
(f) All accrued fees and expenses of Agent (including the fees and expenses of counsel (including any local counsel) for Agent) due from the Loan Parties on or prior to the First Amendment Effective Date shall have been paid in accordance with full in cash, including (i) all fees payable to Agent under Agent Fee Letter and (ii) a closing fee for the Merger Agreement benefit of each Lender (as other than Departing Lenders) in effect an amount equal to 0.20% of the aggregate amount of each Lender’s Commitment on the Execution Date)First Amendment Effective Date giving effect to this Amendment;
(g) Agent shall have received good standing certificates for each Loan Party, without any amendment issued by the Secretary of State or modification thereto that, in the reasonable determination other appropriate official of the Required Holders, would be adverse in any material such Loan Party’s jurisdiction of organization and with respect to the rights or interests European Borrower, an original extract from the register of the Noteholderschamber of commerce;
(bh) The Noteholders Each Borrower shall have provided, in form and substance satisfactory to Agent and each Lender, all documentation and other information as Agent or any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent and Lenders in relation to such Borrower;
(k) All principal, interest, fees and other amounts owing under the Existing Loan Agreement to any “Lender” under and as defined in the Existing Loan Agreement that will not be a Lender under the Loan Agreement (any such Lender, a “Departing Lender”) shall have been (or shall substantially contemporaneously be) repaid in full; and
(l) Agent shall have received a Subsidiary Guaranty (together with the guaranty provided by New ICE Parent in Section 22 Borrowing Base Certificate prepared as of the Note Purchase Agreement as amended by this First AmendmentFebruary 29, the “Guaranties”), duly executed and delivered by NYSE, by which NYSE guarantees all obligations under the Note Purchase Agreement and the Notes (the “Obligations”);
(c) The Noteholders shall have received a legal opinion from counsel to the Company, New ICE Parent and NYSE, 2020 in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, addressing such matters as ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, as counsel to the Required Holders, may reasonably request;
(d) The Noteholders shall have received (i) an unaudited consolidated balance sheet of New ICE Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on such date and (ii) an unaudited consolidated income statement of New ICE Parent and its Subsidiaries for the period of four fiscal quarters most recently ended prior to the First Amendment Effective Date showing adjustments on a Pro Forma Basis to give effect to the consummation of the NYSE Merger Transactions as if such events had occurred on the first day of such period, together with an Officer’s Certificate with respect to the period covered by such financial statements, executed by a Senior Financial Officer of New ICE Parent, setting forth the computation of the financial covenants set forth in Sections 10.1 and 10.2 of the Note Purchase Agreement as of the last day of the period covered by such financial statements, all of which shall be in form and substance reasonably satisfactory to the Required Holders;
(e) The Noteholders shall have received a certificate, signed by a Responsible Officer of each Obligor, in form and substance reasonably satisfactory to the Required Holders, certifying that the representations and warranties set forth in Article III hereof are true and correct as of the First Amendment Effective Date;
(f) The Noteholders shall have received (i) a certificate of the secretary, an assistant secretary or other appropriate officer of New ICE Parent as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of New ICE Parent, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of New ICE Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of New ICE Parent, authorizing the execution, delivery and performance of this First Amendment and its joining to the Note Purchase Agreement and guaranty of the obligations thereunder, and as to the incumbency and genuineness of the signature of each officer of New ICE Parent executing this First Amendment, and attaching all such copies of the documents described above; and (ii) a certificate of the secretary, an assistant secretary or other appropriate officer of NYSE as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Required Holders, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of NYSE, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of NYSE, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of NYSE, authorizing the execution, delivery and performance of a guaranty under the Note Purchase Agreement, and as to the incumbency and genuineness of the signature of each officer of NYSE executing such guaranty, and attaching all such copies of the documents described above;
(g) The Obligors shall have paid all remaining reasonable fees and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP not previously paid in accordance with Section 2.1(e) in connection with the preparation, negotiation, execution and delivery of this First Amendment and the transactions contemplated hereby; and
(h) The Obligors shall have paid the amendment fee required by Section 2.3 hereof to each NoteholderAgent.
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