First Amendment Effective Date. This Amendment shall become effective as of the date first above written when and only when: (a) Administrative Agent shall have received all of the following, 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 the Borrower, the Guarantors, each of the Lenders, the Administrative Agent, Issuing Bank, and Swingline Lender; (ii) replacement Notes for the Lenders whose Commitment has changed executed by the Borrower in favor of each such Lender requesting such a Note, each Note in a principal amount equal to such Lender’s Commitment and each Note dated as of the First Amendment Effective Date; (iii) 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 from Borrower (i) representing and warranting that, 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 Administrative Agent and its counsel. (b) Borrower shall have paid: (i) all recording, 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 (1) Business Day prior to the First Amendment Effective Date; (ii) 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 Administrative 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 invoice at least one (1) Business Day prior to the First Amendment Effective Date, or otherwise due Administrative Agent and including invoiced fees and disbursements of Administrative Agent’s attorneys.
Appears in 1 contract
First Amendment Effective Date. 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 first above written (the “First Amendment Effective Date”) when and only whenthe following additional conditions have also been satisfied:
(a) the Administrative Agent shall have received all a certificate of a Responsible Officer of the followingCompany dated the date hereof, at certifying as to the representations and warranties made by each Loan Party contained in Section 3 hereof;
(b) the Administrative Agent’s office, Agent shall have received a fee letter duly executed and delivered and in form, substance and date reasonably satisfactory to Administrative Agent:
(i) this Amendment, executed by the Borrower, Company (the Guarantors, each of the Lenders, the Administrative Agent, Issuing Bank, and Swingline Lender“Amendment Fee Letter”);
(iic) replacement Notes for the Lenders whose Commitment has changed Administrative Agent shall have received Assignment and Assumptions duly executed and delivered by the Borrower Company, PNC Bank, National Association and HSBC Bank USA, N.A., in favor of each such Lender requesting such a Notecase, each Note in a principal amount equal to such Lender’s Commitment and each Note dated as setting forth assignments of the Term Loans consistent with the allocations set forth on Annex II attached hereto (collectively, the “First Amendment Effective DateAssignments”);
(iiid) 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 the Lenders or attaching any amendments or restatements thereof;
(iv) a certificate from Borrower (i) representing and warranting that, on and as of the First Amendment Effective Date, before and after giving effect shall have received all fees 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 paid on the First Amendment Effective Date after giving effect pursuant to actual Credit Exposure on the Amendment Fee Letter; and
(e) Lenders shall have received at least three Business Days prior to the First Amendment Effective DateDate 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, if anyincluding, (ii) ratifying without limitation, the Patriot Act and confirming the Canadian AML Acts, in each case to the extent reasonably requested 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 Administrative Agent and its counsel.
(b) Borrower shall have paid:
(i) all recording, 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 (1) 10 Business Day Days prior to the First Amendment Effective Date;
(ii) 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 Administrative 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 invoice at least one (1) Business Day prior to the First Amendment Effective Date, or otherwise due Administrative Agent and including invoiced fees and disbursements of Administrative Agent’s attorneys.
Appears in 1 contract
Sources: Credit Agreement (Morningstar, Inc.)
First Amendment Effective Date. This Amendment shall become effective as on the first date on which each of the date first above written when and only when:conditions set forth in this Section 3.1 is satisfied (such date, the “First Amendment Effective Date”):
(a) the Administrative Agent shall have received all counterparts of the following, at Administrative Agent’s office, this Amendment duly executed and delivered by the Borrower and the Lenders constituting the Majority Lenders in form, substance and date reasonably satisfactory to Administrative Agent:
(i) this Amendment, executed by the Borrower, the Guarantors, each of the Lenders, the Administrative Agent, Issuing Bank, and Swingline Lender;
(iib) replacement Notes for the Lenders whose Commitment has changed executed by the Borrower in favor of each such Lender requesting such a Note, each Note in a principal amount equal to such Lender’s Commitment and each Note dated as of the First Amendment Effective Date;
(iii) 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 from Borrower (i) representing and warranting that, on and as of the First Amendment Effective Date, before and after giving effect to the increase in Commitments resulting hereunder (A) this Amendment, no Default or Event of Default exists shall exist under the Credit Agreement or would exist immediately after giving effect to under any other Loan Document;
(c) each representation and warranty of the increase Borrower and the Guarantors set forth in the Commitments, (B) the representations Credit Agreement and warranties contained in Article V and the other Loan Documents are shall be true and correct in all material respects on and as of the First Amendment Effective Date, except (i) to the extent that any such representations representation and warranties specifically refer warranty is expressly limited to an earlier date, in which case they are true case, on 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 anysuch representation and warranty shall continue to be true and correct as of such specified earlier date, and (ii) ratifying to the extent that any such representation and confirming 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 all respects;
(d) the Administrative Agent shall have received an opinion by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as counsel to the Credit Parties, in a form reasonably satisfactory to the Administrative Agent;
(e) each of the Loan Documents, (iii) agreeing that all Loan Documents Second Lien Indenture and the Second Lien Intercreditor Agreement 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 Administrative Agent and its counsel.
(b) Borrower Initial Exchange Date shall have paid:
(i) all recording, 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 (1) Business Day prior to occurred concurrently with the occurrence of the First Amendment Effective Date;
(iif) the arrangement Borrower shall have paid (i) an amendment 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 payable to the Administrative Agent pursuant to the First Amendment Fee Letter Agent, for the account of each undersigned Lender increasing who has executed and delivered 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 Administrative Agent’s counsel by noon, New York on or before 12:00 pm eastern time on September 7December 21, 20112018, which fee once paid will be fully earned and nonrefundable; and
(iv) the extension fee in an amount equal to be paid to the Administrative Agent pursuant to 60 basis points on each such Lender’s Loans on 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 Effective Date and (ii) 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 invoice at least extent invoiced no later than one (1) Business Day Days prior to the First Amendment Effective Date, all fees and other amounts due and payable on or otherwise due prior to the First Amendment Effective Date, including reasonable and documented fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and Stroock & Stroock & ▇▇▇▇▇ LLP and all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement; and
(g) the Administrative Agent shall have received mortgages and including invoiced fees other Security Instruments sufficient to create first priority, perfected Liens (subject only to Permitted Liens) on at least 95% of the total PV-9 of the Proved Reserves of the Borrower and disbursements of Administrative Agent’s attorneysthe Guarantors evaluated by the most recently delivered Reserve Report, after giving effect to exploration and production activities, acquisitions, dispositions and production.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Ultra Petroleum Corp)
First Amendment Effective Date. This Amendment shall become effective as of the first date first above written when and only when:(the “First Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent):
(a) the Administrative Agent shall have received all a counterpart signature page of the following, at Administrative Agent’s office, this Amendment duly executed and delivered and in form, substance and date reasonably satisfactory to Administrative Agent:
(i) this Amendment, executed by the BorrowerHoldings, the Guarantors, Borrower and each of the LendersLoan Party, the Administrative Agent, Issuing Bankeach New Term Lender and certain other Lenders, and Swingline Lenderwho shall, collectively with the New Term Lenders, represent (immediately after giving effect to 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 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 the operating agreement (or equivalent document) of such Loan Party, either (A) has not been amended since the Closing Date or (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) 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) replacement Notes for certifying that attached thereto are the Lenders whose Commitment has changed executed 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 the Borrower in favor a Responsible Officer of each such Lender requesting such a Note, each Note in a principal amount equal to such Lender’s Commitment and each Note dated 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 5;
(iiic) from to the Borrower and extent requested by the GuarantorsAdministrative Agent, 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 equivalentits counsel) 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 from Borrower (i) representing and warranting thatshall have received, on and as behalf 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 itself and the other Loan Documents are true Lenders 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 each Issuing Bank on the First Amendment Effective Date, if any, a customary written opinion of (iii) 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, in its capacity as special New York counsel to each Loan Party for Holdings, the Borrower and the General PartnerSubsidiary Guarantors, (ii) DLA Piper LLP in form its capacity as special Delaware counsel for Holdings, the Borrower and substance reasonably satisfactory 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 and its counsel.
(b) Borrower shall have paid:
received a certificate of good standing (i) all recording, 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 (1) Business Day prior to the First Amendment Effective Dateextent 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;
(iie) the arrangement fee to be paid to the Arranger pursuant to extent requested by the First Amendment Fee LetterAdministrative Agent, 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 Administrative 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 paidreceived all documentation and other information, 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 invoice at least one (1) two Business Day 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 otherwise due 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 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 requirements of the Credit Agreement; and
(h) 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 been satisfied on the date hereof, by funding the New Term Loans, the Administrative Agent and including invoiced fees each New Term Lender that has executed this Agreement (or an Assignment and disbursements of Administrative Agent’s attorneysAssumption 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 hereunder.
Appears in 1 contract
Sources: First Incremental Amendment (Isos Acquisition Corp.)
First Amendment Effective Date. This Amendment shall become effective as of the first date first above written when and only when:(the “First Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent):
(a) the Administrative Agent shall have received all a counterpart signature page of the following, at Administrative Agent’s office, this Amendment duly executed by VPI and delivered and in form, substance and date reasonably satisfactory to Administrative Agent:
(i) this Amendment, executed by the Borrower, the Guarantors, each of the LendersLoan Party, the Administrative Agent, Issuing Bank, Agent and Swingline 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 in clause (a), in substantially the form delivered on the Closing Date (i) certifying that the 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 the operating agreement (or equivalent document) of such Loan Party, either (A) has not been amended since the Closing Date or (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) 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) replacement Notes for certifying that attached thereto are the Lenders whose Commitment has changed executed 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 the Borrower in favor a Responsible Officer of each such Lender requesting such a Note, each Note in a principal amount equal to such Lender’s Commitment and each Note dated 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;
(iiic) from to the Borrower and extent requested by the GuarantorsAdministrative Agent, 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 equivalentits counsel) 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 from Borrower (i) representing and warranting thatshall have received, on and as behalf 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 itself 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 New Term Lenders on the First Amendment Effective Date, if any, a customary written opinion of (iii) 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, in its capacity as special New York counsel to each Loan Party for VPI and the General Partnerother Loan Parties, (ii) Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ LLP, in form its capacity as special Delaware counsel for VPI and substance reasonably satisfactory 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 and its counsel.
(b) Borrower shall have paid:
received a certificate of good standing (i) all recording, 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 (1) Business Day prior to the First Amendment Effective Dateextent 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;
(iie) the arrangement fee to be paid to the Arranger pursuant to extent requested by the First Amendment Fee LetterAdministrative Agent, 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 Administrative 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 paidreceived all documentation and other information, 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 invoice at least one (1) two Business Day 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 otherwise due 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 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 requirements of the Credit Agreement;
(h) 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 customary officer’s certificate of the Borrower. For purposes of determining whether the conditions specified in this Section 5 have been satisfied on the date hereof, by funding the New Term Loans, the Administrative Agent and including invoiced fees and disbursements of Administrative Agent’s attorneyseach 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 matter required hereunder.
Appears in 1 contract
First Amendment Effective Date. This Amendment shall become deemed effective as of the date first above written when and only whenhereof (the “First Amendment Effective Date”) upon satisfaction of the following conditions:
(a) Administrative 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 all a certificate of the following, at Administrative Agent’s office, a duly executed and delivered and in form, substance and date reasonably satisfactory authorized officer of or other person authorized to Administrative Agent:
(i) this Amendment, executed by the Borrower, the Guarantors, represent each of the Lenders, the Administrative Agent, Issuing Bank, and Swingline Lender;
(ii) replacement Notes for the Lenders whose Commitment has changed executed by the Borrower in favor of each such Lender requesting such a Note, each Note in a principal amount equal to such Lender’s Commitment and each Note dated as of the First Amendment Effective Date;
(iii) from the Borrower and the Guarantors, such certificates of secretary, assistant secretary, manager, or general partner, as applicable, as the Administrative Agent may reasonably requireLoan Party, certifying (i) resolutions that attached copies of its board of directorssuch Loan Party’s Organization Documents are true and complete, managers or members (or their equivalent) authorizing the execution and performance of this Amendment which such Person is executing in connection herewithfull force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the incumbency 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 officer executing Loan Documents to which such Loan Party is a party. Agent may conclusively rely on this Amendment, and (iii) there has been no change certificate until it is otherwise notified by the applicable Loan Party 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 thereofwriting;
(ivc) Agent shall have received certificates, in form and substance satisfactory to it, from a certificate from Borrower (i) representing and warranting Responsible Officer of each Loan Party certifying that, on and as of the First Amendment Effective Date, before and after giving effect to this Amendment and the increase in Commitments resulting hereunder transactions hereunder, (Ai) 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 or would exist immediately after giving effect to the increase in the Commitments, exists; (Biii) the representations and warranties contained set forth in Article V and Section 9 of the other Credit Agreement with respect to such Loan Documents Party are true and correct in all material respects on and as of the First Amendment Effective Date(or, except with respect to the extent that such representations and warranties specifically refer qualified by materiality, in all respects) (except for representations and warranties that expressly relate to an earlier date, in which case they are 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 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 recordations necessary to perfect its Liens in the 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 that Permitted Liens;
(f) All accrued fees and expenses of Agent (including the representations fees and warranties contained 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 subsections full in cash, including (ai) all fees payable to Agent under Agent Fee Letter and (bii) a closing fee for the benefit of Section 5.06 shall be deemed each Lender (other than Departing Lenders) in an amount equal 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 0.20% of the most recent testing date and aggregate amount of each Lender’s Commitment on the First Amendment Effective Date after giving effect to actual Credit Exposure on this Amendment;
(g) Agent shall have received good standing certificates for each Loan Party, issued by the First Amendment Effective DateSecretary of State or other appropriate official of such Loan Party’s jurisdiction of organization and with respect to the European Borrower, if any, (ii) ratifying and confirming each an original extract from the register of the chamber of commerce;
(h) 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 DocumentsAgreement 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 (iiior shall substantially contemporaneously be) 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 repaid in full force and effectfull; and
(vl) an opinion from ▇▇▇▇▇ Lovells US LLPAgent shall have received a Borrowing Base Certificate prepared as of February 29, counsel to each Loan Party and the General Partner, 2020 in form and substance reasonably satisfactory to the Administrative Agent and its counselAgent.
(b) Borrower shall have paid:
(i) all recording, 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 (1) Business Day prior to the First Amendment Effective Date;
(ii) 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 Administrative 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 invoice at least one (1) Business Day prior to the First Amendment Effective Date, or otherwise due Administrative Agent and including invoiced fees and disbursements of Administrative Agent’s attorneys.
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First Amendment Effective Date. This Amendment shall become effective as of the first date first above written when and only when:(the “First Amendment Effective Date”) on which each of the following conditions shall have been satisfied (or waived in accordance with Section 9.02 of the Credit Agreement):
(a) the Administrative Agent shall have received all a counterpart signature page of the following, at Administrative Agent’s office, this Amendment duly executed and delivered and in formby Holdings, substance and date reasonably satisfactory to Administrative Agent:
(i) this AmendmentU.S. HoldCo 1, executed by U.S. HoldCo 2, the Borrower, the Guarantors, each of the Lenders, the Administrative Agent, Issuing Bank, and Swingline Lender;
(ii) replacement Notes for the Lenders whose Commitment has changed executed by the Borrower in favor of each such Lender requesting such a Note, each Note in a principal amount equal to such Lender’s Commitment and each Note dated as of the First Amendment Effective Date;
(iii) 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 thereofwho shall constitute the Required Revolving Lenders, the Required Tranche A Terms Lenders, the Required Tranche B Term Lenders and the Required Lenders;
(ivb) a certificate from all fees and expenses required to be paid by (or on behalf of) the Borrower (i) representing and warranting that, to the Administrative Agent or any arranger pursuant to any fee letter with the Borrower on and as of or before the First Amendment Effective Date, before and after giving effect the Consent Fee (as defined below), shall have been (or shall substantially contemporaneously be) paid in full in cash (and in the case of expenses, to the increase in Commitments resulting hereunder (A) no Default or Event of Default exists or would exist immediately after giving effect extent invoiced at least three Business Days prior to the increase First Amendment Effective Date or such shorter period agreed by the Borrower in the Commitments, its sole discretion);
(Bc) the representations and warranties contained of each Loan Party set forth herein and in Article V and the other Loan Documents are shall be true and correct in all material respects on and as of the First Amendment Effective Date; provided that, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and except warranty that the representations and warranties contained in subsections (a) and (b) of Section 5.06 is qualified by materiality or reference to Material Adverse Effect shall be deemed true and correct in all respects, taking into account such materiality or reference to refer to the most recent financial statements furnished pursuant to clauses (a) and (b)Material Adverse Effect, 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 or on such earlier date, as the case may be;
(d) at the time of and immediately after giving effect to actual Credit Exposure on this Amendment, no Default or Event of Default shall have occurred and be continuing; and
(e) the Administrative Agent shall have received a certificate, dated the First Amendment Effective Date, if any, (ii) ratifying Date and confirming each signed by a Financial Officer or the President or a Vice President of the Loan DocumentsBorrower, (iii) agreeing that all Loan Documents shall apply to confirming compliance with 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 conditions set forth 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 Administrative Agent and its counsel.
(b) Borrower shall have paid:
(i) all recording, 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 (1) Business Day prior to the First Amendment Effective Date;
(ii) 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 Administrative 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.
paragraphs (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 invoice at least one (1d) Business Day prior to the First Amendment Effective Date, or otherwise due Administrative Agent and including invoiced fees and disbursements of Administrative Agent’s attorneysthis Section 4.
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