Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied: (i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment; (b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects); (c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing; (d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date; (e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and (f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1
Appears in 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Conditions of Effectiveness. This Amendment and The effectiveness of the amendment and restatement of the Replaced Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred by this Agreement is subject to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall have been satisfiedbe originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) the Borrowers shall have fully executed and delivered counterparts of this Amendment Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Disbursement Instruction Agreement effective as of the Required Lenders shall Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have executed and delivered counterparts a Material Adverse Effect;
(v) a favorable opinion of this Amendment counsel to the Borrower (on behalf of each of the Loan Parties), addressed to the Administrative Agent and (iii) each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendmentmay reasonably request;
(bvi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all applicable consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent certifying (A) that each Consolidated Party is in compliance in all material respects with all existing contractual financial obligations, (B) all governmental, shareholder and third party consents and approvals necessary for the Loan Parties to enter into the Loan Documents and fully perform thereunder, if any, have been obtained, (C) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (1) each of the Loan Parties is solvent, (2) no Default or Event of Default exists, (3) all representations and warranties of contained herein and in the Borrowers (x) contained in Section 3 hereof shall be other Loan Documents are true and correct in all material respects on and as of (or, to the Amendment No. 1 Effective Date; provided that extent qualified by materiality or Material Adverse Effect, in all respects) except (x) to the extent that such representations and warranties specifically refer to an earlier date, they shall be in which case such representations were true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) for purposes of the representations and warranties set forth in Section 5.13, to the Credit extent of changes resulting from transactions and other events contemplated or not prohibited by this Agreement or the other Loan Documents and changes occurring in the ordinary course of Borrower’s business, and (4) the Loan Parties are true and correct on and as in compliance with each of the Amendment No. 1 Effective Date financial covenants set forth in all material respects with Section 7.11 (and including detailed calculations of each such financial covenant); (D) that, to such Responsible Officer’s knowledge, there has been no event or circumstance since the same effect as though made on and as date of the Amendment No. 1 Effective Date Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (it being understood E) the current Debt Ratings;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and agreed that any representation is in effect; and
(ix) such other assurances, certificates, documents or warranty which consents as the Administrative Agent or the Required Lenders reasonably may require.
(b) There shall not have occurred a material adverse change since December 31, 2017, in the operations, business, properties, liabilities (actual or contingent), or financial condition of the Borrower and the other Consolidated Parties taken as a whole, as reasonably determined by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);the Administrative Agent.
(c) prior to and immediately after giving effect to this AmendmentThere shall not exist any action, no Default suit, investigation, or Event of Default shall proceeding pending or threatened, in any court or before any arbitrator or governmental authority that could have occurred and be continuing;a Material Adverse Effect, as reasonably determined by the Administrative Agent.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by the Administrative Agent Agent, the Borrower shall have received (i) a certificate paid all fees, charges and disbursements of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Second Amendment Effective Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent), and .
(iif) a certificate of compliance/status/good standing, as applicable, for each The Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act.
(g) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Amendment NoClosing Date. 1 Effective Date;
(e) Without limiting the Borrowers generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall pay all reasonable and documented out-of-pocket expenses of be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, shall have received notice from such Lender prior to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Term Loan Agreement (Tanger Properties LTD Partnership /Nc/), Term Loan Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Effectiveness. This Amendment and The effectiveness of the amendment and restatement of the Existing Credit Agreement as set forth in pursuant to Section 1 hereof of this Agreement shall become effective as of be subject to the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent (or its counsel) shall have received (i) from each of the Borrowers shall have executed Borrowers, the Required Lenders under the Existing Credit Agreement and delivered counterparts the U.S. Term Lenders either a counterpart of this Amendment Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Agent, Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) the Required Lenders Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have executed and delivered counterparts of this Amendment received a favorable written opinions (addressed to the Administrative Agent and (iiithe Lenders and dated the Effective Date) of K&L Gates LLP, U.S. counsel to the Loan Parties, K&L Gates LLP, U.K. counsel to the Loan Parties, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Multicurrency Loan Parties, the Loan Documents, this Agreement and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Company hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have executed a counterpart of this Amendment;
(b) received such documents and certificates as the representations Administrative Agent or its counsel may reasonably request, all in form and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that substance reasonably satisfactory to the extent that such representations Administrative Agent and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;counsel.
(d) the The Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date all fees and executed by its Secretary other amounts due and payable on or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Restatement Effective Date;
(e) , including, to the Borrowers shall pay extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be reimbursed or paid on by the Amendment NoBorrowers under the Loan Documents and (ii) all accrued and unpaid interest under the Existing Credit Agreement and all accrued and unpaid fees under Sections 2.12(a) and 2.12(b) of the Existing Credit Agreement. 1If any LC Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon. The Administrative Agent shall notify the Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
Conditions of Effectiveness. This Amendment and the amendment The effectiveness of the Credit this Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred is subject to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the following, each properly executed (if applicable) by a Responsible Officer of the signing Loan Party (which, subject to Section 10.10(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, Agreement from each party hereto;
(ii) a Note executed by the Required Lenders shall have executed Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and delivered counterparts capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing;
(v) a customary opinion of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and V▇▇▇▇▇▇ LLP, special Maryland counsel to the Guarantor, addressed to the Administrative Agent and each Lender;
(iiivi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied;
(vii) the Administrative Agent and Audited Financial Statements of the Multicurrency Administrative Agent shall have executed Guarantor referred to in Section 5.05(a); and
(viii) a counterpart solvency certificate from the chief financial officer, treasurer or other senior financial officer of this Amendment;the Borrower substantially in the form attached hereto as Exhibit F.
(b) Any fees required to be paid on or before the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that Closing Date pursuant to the extent that such representations and warranties specifically refer to an earlier date, they Fee Letters shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);have been paid.
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default The Borrower shall have occurred paid all reasonable, documented, out-of-pocket fees, charges and be continuing;
(d) the Administrative Agent shall have received (i) a certificate disbursements of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered counsel to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably directly to such counsel if requested by the Administrative Agent Agent) to the extent invoiced at least five (5) Business Days prior to the Amendment No. 1 Effective Closing Date;
(e) the Borrowers , plus such additional amounts of such fees, charges and disbursements as shall pay all constitute its reasonable estimate of such fees, charges and documented out-of-pocket expenses of the Administrative Agent disbursements incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents or to be delivered hereunder, if any incurred by it through the closing proceedings (but limited, in provided that such estimate shall not thereafter preclude a final settling of accounts between the case of legal fees Borrower and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and.
(fd) The Closing Date Refinancing shall be consummated substantially simultaneously with the Closing Date.
(i) The Administrative Agent shall have received, at least five days prior to the Closing Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall pay all reasonable fees have received such Beneficial Ownership Certification (provided that, upon the execution and expenses due delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Istar Inc.), Credit Agreement (Safehold Inc.)
Conditions of Effectiveness. This Amendment and the amendment The effectiveness of the Credit this Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred is subject to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall have been satisfiedbe originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment Agreement executed by the Administrative Agent, each Lender and each Loan Party;
(ii) each Note executed by the Borrowers in favor of each Lender requesting a Note or Notes;
(iii) the Security Agreement executed by each Loan Party;
(iv) the Term Loan Intercreditor Agreement executed by the Borrowers and the Term Loan Agent;
(v) the Fee Letter executed by the Company and the Administrative Agent;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer of each Loan Party or Restricted Subsidiary executing the Loan Documents to which each Loan Party or Restricted Subsidiary is a party;
(vii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(viii) the executed opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, (ii) the Required Lenders shall have executed Collateral Agent and delivered counterparts of this Amendment each Lender, in form and substance reasonably acceptable to the Administrative Agent and Collateral Agent;
(iiiix) (i) unaudited consolidated financial statements for the quarter ending September 30, 2016 prepared in accordance with GAAP and (ii) financial projections (including the assumption on which such projections are based) for fiscal years 2017 through 2021;
(x) a certificate signed by a Responsible Officer of the Company certifying that the conditions specified in Sections 4.01(c) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has not occurred since December 31, 2016, any Material Adverse Effect;
(xi) a solvency certificate from the chief financial officer of the Company in the form of Exhibit L, which demonstrates that the Company and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions contemplated hereby, will be, Solvent
(xii) copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Material Real Property of any Loan Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Agreements (other than Permitted Liens);
(xiii) the Collateral Questionnaire, executed by each Loan Party; and
(xiv) a Borrowing Base Certificate covering the Borrowing Base as of the Closing Date, with customary supporting documentation.
(b) (i) Any fees required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders pursuant to the Fee Letter shall have been paid and (ii) any costs and expenses required to be paid on or before the Multicurrency Closing Date to the Administrative Agent, the Arrangers or the Lenders to the extent invoices have been received by the Company at least two Business Days prior to the Closing Date (or such later date as reasonably agreed by the Company) shall have been paid.
(c) The Company and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding financial assurance requirements (including but not limited to reclamation bonding requirements).
(d) The Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 6.07.
(e) In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Collateral Documents), each Loan Party shall have delivered to Collateral Agent:
(i) executed a counterpart counterparts of this Amendmentthe Security Agreement;
(bii) evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Collateral Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii) fully executed IP Security Agreements, in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
(f) There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in writing in any court or before any arbitrator or Governmental Authority that impairs the ability of the Loan Parties to consummate the Transactions and no preliminary or permanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the Arrangers, the Agents or the Lenders. All Governmental Authorities and Persons shall have approved or consented to the transactions contemplated hereby, to the extent required, and such approvals shall be in full force and effect.
(g) The Arrangers and the Agents shall have received at least three business days prior to the Closing Date all documentation and other information required by the Arrangers’ and the Agents’ regulatory authorities with respect to the Company and the other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, that has been requested by the Arrangers or the Agents at least ten Business Days prior to the Closing Date.
(h) On the Closing Date, neither the Company nor any of its Subsidiaries shall have any material Indebtedness other than Indebtedness permitted pursuant to Section 7.03.
(i) Since December 16, 2016, no Material Adverse Effect shall have occurred.
(j) The Administrative Agent shall have received any promissory note required to be pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(k) The representations and warranties of (i) the Borrowers (x) contained in Section 3 hereof Article V and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the Amendment No. 1 Effective Date; provided that date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; providedprovided that, furtherin each case, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall not be be true applicable to any representations and correct warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in all respects);the text thereof.
(cl) prior to and immediately after giving effect to this Amendment, no No Default or Event of Default shall have occurred and be continuing;
(d) , or would result, from any Credit Extension or from the application of the proceeds thereof on the Closing Date. For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under any Loan Document to be consented to or approved by or acceptable or satisfactory to such Lender, unless the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of written notice from such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days Lender prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Contura Energy, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)
Conditions of Effectiveness. This The effectiveness of this Amendment and is subject to the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied:
precedent that (i) the Borrowers Administrative Agent shall have received counterparts to this Amendment, duly executed by each of the Company, the Lenders, each New Lender and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that received counterparts to the extent that such representations Consent and warranties specifically refer to an earlier dateReaffirmation, they shall be true and correct in all material respects as the form of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respectsattached hereto as Exhibit A, duly executed by each Loan Party (other than the Company);
, (c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(diii) the Administrative Agent shall have received (i) a certificate of each Borrowersuch opinions, dated the Amendment No. 1 Effective Date instruments and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be are reasonably requested by the Administrative Agent at least five Agent, (5) Business Days prior to the Amendment No. 1 Effective Date;
(eiv) the Borrowers Administrative Agent shall pay all reasonable and documented out-of-pocket expenses have received payment and/or reimbursement of the Administrative Agent’s and its affiliates’ reasonable fees and expenses (including, to the extent invoiced, reasonable fees and expenses of counsel for the Administrative Agent) in connection with this Amendment and (v) the Administrative Agent shall have made such reallocations of each Lender’s Applicable Percentage of the Revolving Exposure under the Credit Agreement (including the New Lenders) as are necessary in order that the Revolving Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of the Revolving Exposure under the Credit Agreement as amended hereby. The Company hereby agrees to compensate each Lender for losses, costs and expenses incurred by such Lender in connection with the preparation, execution sale and delivery assignment of this Amendment any Eurocurrency Loans and the other instruments and documents to be delivered hereunder, if any reallocation described in clause (but limitedv) above, in each case on the case of legal fees and expensesterms, to the actual reasonable extent and documented out- of-pocket fees, disbursements and other charges in the manner set forth in Section 2.17 of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Lifetime Brands, Inc), Credit Agreement (Lifetime Brands, Inc)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Third Amendment No. 1 Effective Date”) when each that all of the following conditions precedent shall have been satisfied:
2.1 The Administrative Agent’s receipt of the following, each of which shall be e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified and each in form and substance satisfactory to the Administrative Agent:
(a) counterparts of this Agreement, in such number as requested by the Administrative Agent, duly executed by the Borrower, the Guarantors, the Administrative Agent and Lenders constituting Required Lenders.
(b) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(c) a certificate of a Responsible Officer of the Borrower to the effect that (i) the Borrowers shall conditions specified in Sections 2.2 and 2.3 have been satisfied and (ii) no event has occurred and is continuing which constitutes a Default;
(d) a fully executed and delivered counterparts copy of this Amendment an amendment to the Administrative AgentIntercreditor Agreement;
(e) a fully executed copy of an amendment, in each case dated as of (or prior to) the Third Amendment Effective Date, to each of the following (each as defined in the Intercreditor Agreement):
(i) the Regions Term Loan Agreement;
(ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and Huntington Term Loan Agreement;
(iii) the PNC Term Loan Agreement; and
(iv) the Prudential Note Agreement; and
(f) such other assurances, certificates, documents, consents or opinions as the Administrative Agent and or the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;Required Lenders reasonably may require.
(b) the 2.2 The representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Third Amendment No. 1 Effective Date in all material respects with the same effect Date, as though made on and as of the Amendment No. 1 Effective Date (it being understood such date other than any such representations or warranties that, by their terms, refer to another date, in which case such representations and agreed that any representation or warranty which by its terms is made as of a specified date warranties shall be be true and have been correct in all material respects only as of such specified other date, and that any representation or warranty which is subject to any materiality qualifier .
2.3 There shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall not have occurred and since December 31, 2017, any event or circumstance, either individually or in the aggregate, that has had or could reasonably be continuing;
expected to have a Material Adverse Effect (d) excluding any event or circumstance resulting from the Administrative Agent shall have received (i) a certificate of each Borrower, dated COVID-19 pandemic to the Amendment No. 1 Effective Date and executed by its Secretary extent such event or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified circumstance has been publicly disclosed by the relevant authority of Borrower in its securities filings or disclosed in writing by the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on and the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization Lenders prior to the Third
2.4 The Administrative Agent and each Lender shall have received all documentation and other jurisdiction in which it carries on business as may be reasonably requested by information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act, and the Beneficial Ownership Regulation, in each case, to the extent requested at least five (5) Business Days prior to the Third Amendment No. 1 Effective Date;.
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents 2.5 Any fees owed to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Lender or Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on or before the Third Amendment No. 1Effective Date shall have been paid.
Appears in 2 contracts
Sources: Credit Agreement (Apple Hospitality REIT, Inc.), Credit Agreement (Apple Hospitality REIT, Inc.)
Conditions of Effectiveness. This Amendment and the amendment The effectiveness of the Credit this Agreement as set forth is subject to satisfaction or waiver in accordance with Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each 11.01 of the following conditions conditions:
(a) The Administrative Agent’s receipt of this Agreement, properly executed by a Responsible Officer of the Borrower, dated the Effective Date.
(b) The Administrative Agent shall have received Notes executed by the Borrower in favor of each Lender requesting Notes.
(c) The Arrangers shall have received at least three Business Days prior to the Effective Date all documentation and information as is reasonably requested in writing by the Administrative Agent, at least 10 Business Days prior to the Effective Date, about the Borrower required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act. If the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, the Borrower shall have delivered to each requesting Lender at least three Business Days prior to the Effective Date (to the extent requested by such Lender at least 10 Business Days prior to the Effective Date) a Beneficial Ownership Certification in relation to the Borrower.
(d) All fees and reimbursement of expenses invoiced no later than two Business Days prior to the Effective Date related to the Transactions payable to the Arrangers, the Administrative Agent or the Lenders shall have been satisfied:paid to the extent due.
(e) The Administrative Agent shall have received the following, each properly executed by a Responsible Officer of the Borrower, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date):
(i) such certificates or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrowers shall have executed and delivered counterparts of this Amendment to Borrower as the Administrative AgentAgent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party; and
(ii) the Required Lenders shall have executed such documents and delivered counterparts of this Amendment to certifications as the Administrative Agent and (iii) may reasonably require to evidence that the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that Borrower is qualified as to “materiality,” “Material Adverse Effect” duly organized or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified dateformed, and that any representation or warranty which the Borrower is subject to any materiality qualifier validly existing and in good standing in its jurisdiction of organization. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be true and correct in all respects);
(c) prior satisfied with, each document or other matter required thereunder to and immediately after giving effect be consented to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received (i) a certificate of each Borrower, dated notice from such Lender prior to the Amendment No. 1 proposed Effective Date specifying its objection thereto. The Administrative Agent shall give the Borrower and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions Lenders notice of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures occurrence of the Financial Officers and any other officers Effective Date. The giving of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested notice by the Administrative Agent at least five (5) Business Days prior shall conclusively be deemed to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of constitute an acknowledgement by the Administrative Agent incurred and each Lender that each of the conditions precedent set forth in connection this Section 4.01 shall have been satisfied in accordance with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower its respective terms or shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1have been irrevocably waived by such Person.
Appears in 2 contracts
Sources: Credit Agreement (Warner Bros. Discovery, Inc.), Credit Agreement (At&t Inc.)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become be deemed effective as of the first date (such date being referred to herein as the “Third Amendment No. 1 Effective Date”) when each on which all of the following conditions shall precedent have been satisfiedsatisfied or waived in writing:
(a) the Administrative Agent’s receipt of the following, in such number as reasonably requested by the Administrative Agent,, each of which shall be original, or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each in form and substance satisfactory to the Administrative Agent and the Lenders constituting the Required Lenders:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment from each of the Loan Parties, the Administrative Agent and the Lenders constituting the Required Lenders;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(iv) a favorable customary opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender;
(v) a favorable customary opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that (1) no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (A) challenges the validity or enforceability of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect and (2) since December 31, 2023, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) a certificate, substantially in the form of Exhibit E to the Amended Credit Agreement or otherwise satisfactory to the Administrative Agent, (ii) signed by a Responsible Officer of the Required Lenders shall have executed Parent and delivered counterparts evidencing that, giving pro forma effect as of this December 31, 2023 to the transactions to occur on or about the Third Amendment Effective Date, as of the date of the Third Amendment Effective Date, the Loan Parties are in pro forma compliance with the financial covenants contained in Section 7.11 of the Amended Credit Agreement, setting forth a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter ending December 31, 2023, and including a schedule of Unencumbered Eligible Properties, all in form and detail reasonably satisfactory to the Administrative Agent Agent; and
(viii) an executed joinder agreement to the Guaranty from each Direct Owner and Indirect Owner of each Unencumbered Property listed on Schedule 1 included in Annex II that is not already party to the Guaranty Agreement, including, for the avoidance of doubt, Williamsburg ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇. and ESRT ▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.▇., together with the items referenced in Sections 4.01(a)(iii) and (iiiiv) of the Administrative Agent Amended Credit Agreement with respect to each such Direct Owner and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;Indirect Owner.
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at At least five (5) Business Days prior to the Third Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of , the Administrative Agent incurred and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender requests in connection order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the preparationPATRIOT Act, execution the Beneficial Ownership Regulation (including a Beneficial Ownership Certification) and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limitedcustomary requirements, in the case of legal fees and expenseseach case, to the actual reasonable and documented out- of-pocket extent such information is requested in writing at least ten (10) Business Days prior to the Third Amendment Effective Date.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to the Third Amendment Effective Date (which invoice may be in summary form), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent); and
(f) . Without limiting the Borrower generality of the provisions of the last paragraph of Section 9.03 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 3 each Lender that has signed this Amendment shall pay all reasonable fees and expenses due be deemed to the Amendment No. 1 Arranger (includinghave consented to, without limitationapproved or accepted, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required or to be paid on the Amendment No. 1satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender.
Appears in 2 contracts
Sources: Credit Agreement (Empire State Realty Trust, Inc.), Credit Agreement (Empire State Realty OP, L.P.)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 2 Effective Date”, which date is April 4, 2014) when each of the following conditions shall have been satisfied:
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate of each Borrowerthis Amendment, dated the Amendment No. 1 Effective Date duly executed and executed delivered by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this AmendmentBorrower, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this AmendmentHoldings, and (C) contain appropriate attachmentsthe MLP, including (D) the certificate or articles Cashless Option Lenders, (E) the Additional Term B-3 Lender, (F) Consenting Lenders constituting the Required Lenders and (G) the Administrative Agent.
(b) The Administrative Agent shall have received a Notice of incorporation or organization of such Borrower certified by Borrowing in accordance with the relevant authority requirements of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws Credit Agreement.
(or a confirmation that there have been no changes to such documents since those that were delivered to the c) The Administrative Agent shall have received, on the Second Amendment Effective Date), and (ii) a certificate behalf of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment itself and the other instruments and documents to be delivered hereunderLenders, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Credit Parties, dated as of the Amendment No. 2 Effective Date and addressed to the Administrative Agent and each of the Lenders, in form and substance reasonably satisfactory to the Administrative Agent); and.
(fd) The Administrative Agent shall have received such (x) certificates of good standing (to the Borrower shall pay extent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 2 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Amendment No. 1 Administrative Agent and the Arranger (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower). Substantially simultaneous with effectiveness, the Lenders (including all Cashless Option Lenders but excluding the Additional Term B-3 Lender in its capacity as such) under the existing Credit Agreement shall have been paid (x) all accrued principal (other than the principal amount of Converted Term B Loans) and interest on their Term B-2 Loans to, but not including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger2 Effective Date and (y) required the prepayment premium pursuant to Section 5.01(b) of the Credit Agreement.
(f) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement or any other Credit Document shall be paid true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 12 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(g) No Default or Event of Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by Borrower for each Lender that requests such a Note reasonably in advance of the Amendment No. 2
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (OCI Partners LP)
Conditions of Effectiveness. This Amendment and (a) The effectiveness of this Agreement is subject to the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date satisfaction (such date being referred to as the “Amendment No. 1 Effective Date”or waiver) when each of the following conditions shall have been satisfiedprecedent:
(i) the Borrowers The Administrative Agent shall have received the following, each of which shall be originals or facsimiles (followed promptly by originals), each properly executed by a Responsible Officer of the Borrower (unless otherwise specified), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed each in form and delivered counterparts of this Amendment substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(iii1) this Agreement executed by each party hereto;
(2) a Note executed by the Borrower in favor of each Lender requesting a Note;
(3) such certificates or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(4) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in the state of its organization; and
(5) favorable opinions of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP and the Borrower’s General Counsel, addressed to the Administrative Agent and each Lender, as to the Multicurrency matters set forth in Exhibit E.
(6) The Administrative Agent shall have executed a counterpart of this Amendment;received evidence reasonably satisfactory to it that any and all fees and expenses required to be paid on or before the Closing Date pursuant to the Commitment Letter and the Fee Letter have been paid.
(b7) the The representations and warranties of the Borrowers (x) Borrower contained in Section 3 hereof Article V shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Closing Date; provided that , except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as .
(8) No Default shall exist.
(b) Upon the satisfaction of all of the conditions to “materiality,” “Material Adverse Effect” effectiveness (or similar language shall be true and correct in all respects on such respective dates and (ywaiver thereof) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified dateSection 4.01(a), and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate promptly notify the Borrower and the Lenders of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance effectiveness of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this AmendmentAgreement, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent notice shall be binding on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1parties hereto.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Pmi Group Inc), Revolving Credit Agreement (Pmi Group Inc)
Conditions of Effectiveness. This The effectiveness of this Amendment and is subject to the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) from each Borrower and the Administrative Agent a certificate duly executed counterpart of this Agreement signed on behalf of such party and (ii) from each BorrowerSubsidiary Guarantor a duly executed counterpart of the Consent and Reaffirmation attached hereto.
(b) The Administrative Agent shall have received copies, dated the Amendment No. 1 Effective Date and executed certified by its Secretary or Assistant Secretarya Director of ESCO UK, which shall (A) certify the resolutions of its Board of Directors authorizing Directors’ resolutions approving this Amendment and ESCO UK’s becoming a Borrower under the executionCredit Agreement, delivery and performance such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of this AmendmentESCO UK.
(c) The Administrative Agent shall have received an incumbency certificate, (B) executed by a Director of ESCO UK, which shall identify by name and title and bear the signatures signature of the Financial Officers officers of ESCO UK authorized to request Borrowings under the Credit Agreement and sign this Amendment and any other officers Loan Documents, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified any change in writing by the relevant authority Company or such Subsidiary.
(d) The Administrative Agent shall have received opinions of the jurisdiction of organization of such Borrower U.S. and a true UK counsel to ESCO UK, in form and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered substance reasonably satisfactory to the Administrative Agent on and its counsel, with respect to the Second Amendment Effective Date), and (ii) a certificate laws of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each such other jurisdiction in which it carries on business matters as may be are reasonably requested by counsel to the Administrative Agent and addressed to the Administrative Agent and the Lenders.
(e) ESCO UK shall have delivered any promissory notes requested by any Lender, and any other instruments and documents reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and.
(f) Each Lender (other than Commerce Bank) shall have confirmed for the Borrower Administrative Agent and the Company (i) the number and details of its double taxation treaty passport (“DTTP”) and (ii) that such Lender wishes to use such DTTP for purposes of the Credit Agreement.
(g) All documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act which shall pay all reasonable fees and expenses due be reasonably satisfactory to the Amendment No. 1 Arranger Administrative Agent and the Lenders.
(includingh) All legal matters (including with respect to withholding tax) incident to the making of the Credit Event being made upon the effectiveness of this Amendment, without limitationif any, shall be satisfactory to the Administrative Agent and its counsel in their commercially reasonable discretion.
(i) The Administrative Agent shall have received payment of the Administrative Agent’s and its affiliates’ reasonably incurred and properly documented fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel counsels for the Administrative Agent) in connection with this Amendment and the other Loan Documents, to the Amendment Noextent invoiced prior to the execution of this Amendment. 1 Arranger) required The satisfaction of the conditions precedent above shall be deemed to be paid on simultaneously satisfy all of the Amendment No. 1conditions set out in Section 4.03 for the designation of ESCO UK as a Foreign Subsidiary Borrower.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Esco Technologies Inc)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date when, and only when (such date being referred to as the “Amendment No. 1 3 Effective Date”) when ), each of the following conditions precedent shall have been satisfiedsatisfied or waived:
(i) the Borrowers The Administrative Agent shall have executed and delivered received counterparts of this Amendment to executed by (A) each of the Administrative AgentBorrower and AMR, (iiB) the Required Lenders shall have executed and delivered counterparts each of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Collateral Agent and (C) each of the Required Lenders, or as to any such Lender, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment.
(ii) The Administrative Agent shall have executed received a counterpart certificate of this Amendment;
(b) each Loan Party signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as date of the Amendment No. 1 3 Effective Date; provided that , certifying as to (i) the extent that such truth of the representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth contained in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect Financing Documents as though made on and as of the date of the Amendment No. 1 3 Effective Date (it being understood and agreed Date, except to the extent that any such representation or warranty which by its terms is made as of relates to a specified date date, in which case such representation or warranty shall be be or was true and correct in all material respects only as of such specified date, and (ii) the absence of any event occurring and continuing, or resulting from the Amendment No. 3 Effective Date, that any representation constitutes a Default or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);an Event of Default.
(ciii) prior The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and immediately good standing of the Loan Parties, the authorization of the transactions under this Amendment and any other legal matters relating to the Loan Parties, this Amendment or the transactions contemplated hereunder, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(iv) Immediately before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;.
(dv) The Borrower shall have paid (a) to the Administrative Agent, for the benefit of each Lender executing this Amendment on or before 5:00 PM (EST) on June 25, 2009, an amendment fee equal to 0.75% of the Commitments and Advances of each such Lender in effect or outstanding, as the case may be, on the date hereof and (b) all invoiced accrued fees and expenses of the Administrative Agent shall have received and the Lead Arrangers (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles reasonable fees and expenses of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to Shearman & Sterling LLP, counsel for the Administrative Agent on and the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicableLead Arrangers, for each which invoices shall have been provided to the Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) two Business Days prior to the Amendment No. 1 3 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1.
Appears in 2 contracts
Sources: Credit Agreement (Amr Corp), Credit Agreement (American Airlines Inc)
Conditions of Effectiveness. This (a) The effectiveness of Section 2 of this Amendment and shall be subject to the amendment satisfaction of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfiedprecedent:
(i1) the Borrowers The Administrative Agent shall have received from the Company and the Required Lenders a duly executed and delivered counterparts original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment Amendment.
(2) The Administrative Agent shall have received the consent, in form and substance satisfactory to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment each Guarantor in its capacity as such to the Administrative Agent execution and (iii) delivery hereof by the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;Company.
(b3) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate evidence of each Borrowerpayment by the Company of all fees, dated reasonable costs and expenses due and payable as of the Amendment No. 1 Effective Date hereunder and executed under the Credit Agreement, including any fees arising under or referenced in Section 5 of this Amendment and any costs and expenses payable under Section 6(g) of this Amendment (including the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(4) The Administrative Agent shall have received from the Company, in form and substance satisfactory to the Administrative Agent, a copy of the resolutions passed by its the board of directors of the Company, certified as of the Effective Date by the Secretary or an Assistant SecretarySecretary of such Person, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment.
(5) The Administrative Agent shall have received all other documents it or the Required Lenders may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(B6) identify by name The representations and title and bear the signatures warranties in Section 3 of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a Amendment shall be true and correct copy on and as of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent Effective Date with the same effect as if made on and as of the Second Amendment Effective Date.
(b) For purposes of determining compliance with the conditions specified in Section 4(a), and (ii) a certificate of compliance/status/good standingeach Lender that has executed this Amendment shall be deemed to have consented to, as applicableapproved or accepted, or to be satisfied with, each document or other matter either sent, or made available for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested inspection, by the Administrative Agent at least five to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(5c) Business Days prior to From and after the Amendment No. 1 Effective Date;, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(ed) The Administrative Agent will notify the Borrowers shall pay all reasonable Company and documented out-of-pocket expenses the Lenders of the Administrative Agent incurred in connection with occurrence of the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (Sanmina-Sci Corp), Credit Agreement (Sanmina-Sci Corp)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as date, the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a copy of this Amendment executed by Agent, Required Lenders, each Loan Party and Personal Guarantor (defined below) with one original executed copy of this Amendment to be promptly delivered by Loan Parties to Agent; (ii) an executed copy of the Amended and Restated Revolving Credit Note, dated of even date herewith, in the principal amount of $10,000,000 issued by Borrower to the order of Flushing Bank, with one original executed copy to be promptly delivered by Borrower to Agent; (iii) an executed copy of the Second Amended and Restated Fee Letter, dated of even date herewith, with one original executed copy to be promptly delivered by Borrower to Agent; and (iv) a certificate of the Secretary (or Assistant Secretary) of each BorrowerLoan Party, dated on or around the Amendment No. 1 Effective Date, in form and substance acceptable to Agent, certifying as to (a) the incumbency and signature of the officers (or other representatives) of each Loan Party executing this Amendment, (b) the authorizations by the board of directors (or other governing body) of such Loan Party to such officers or other representatives to enter into and carry out such transactions as are contemplated pursuant to this Amendment; and including therewith copies of the Organic Documents of such Loan Party as in effect on the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, standing certificates for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five Loan Party dated not more than thirty (530) Business Days days prior to the Amendment No. 1 Effective Date;
(e) , issued by the Borrowers shall pay all reasonable secretary of state or other appropriate official of each Loan Party’s jurisdiction of organization and documented out-of-pocket expenses each jurisdiction where the conduct of each Loan Party’s business activities or the Administrative Agent incurred in connection with the preparation, execution and delivery ownership of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1its properties necessitates qualification.
Appears in 2 contracts
Sources: Credit and Security Agreement, Credit and Security Agreement (Manhattan Bridge Capital, Inc)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective on and as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of on which the following conditions shall precedent have been satisfied:
(ia) The Administrative Agent’s receipt of the Borrowers following, each of which shall have be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, secretary or assistant secretary of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and delivered counterparts of this Amendment each in form and substance satisfactory to the Administrative Agent, the Arrangers and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Required Lenders shall have executed and delivered counterparts Borrowers in favor of this Amendment to each Lender requesting Notes;
(iii) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers, secretaries or assistant secretaries of each Loan Party as the Administrative Agent may require evidencing the identity, authority and (iii) the Administrative Agent capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the Multicurrency Administrative Agent shall have executed other Loan Documents to which such Loan Party is a counterpart of this Amendment;
(b) the representations party and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures a copy of a Certificate of the Financial Officers and any other officers Secretary of such Borrower authorized to sign this Amendment, and State (Cor comparable office) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization incorporation of such Borrower and each Loan Party certifying (1) as to a true and correct copy of its bylaws the charter of such Loan Party and each amendment thereto on file in such Secretary’s office, (or a confirmation 2) that there have been no changes such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office and (3) that such Loan Party is validly existing, in good standing and qualified to engage in business in such jurisdiction;
(iv) such documents since those that were delivered to and certifications as the Administrative Agent on the Second Amendment Effective Date)may reasonably require to evidence that each Loan Party is duly organized or formed, and (ii) a certificate that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of compliance/status/good standingproperties or the conduct of its business requires such qualification, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior except to the Amendment No. 1 Effective Dateextent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(ev) the Borrowers shall pay all reasonable and documented out-of-pocket expenses favorable opinions of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, special counsel to the Loan Parties and (ii) ▇▇▇▇▇▇ Attorneys Ltd., Finnish counsel to the Finnish Borrower, in each case, addressed to the Administrative Agent and each Lender, as to the matters and concerning the Loan Parties and the Loan Documents, in form and substance reasonably acceptable to the Administrative Agent;
(vi) a certificate of a Responsible Officer, secretary or assistant secretary of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Company, the statements in which shall be true certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(viii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens, if any, securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released.
(b) Any fees required to be paid to any Agent or Lender on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent); and
(f) . Without limiting the Borrower generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall pay all reasonable fees and expenses due be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Perkinelmer Inc), Credit Agreement (Perkinelmer Inc)
Conditions of Effectiveness. This The effectiveness of this Amendment and is subject to the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received counterparts of (i) the Borrowers shall have executed and delivered counterparts of this Amendment to duly executed by the Borrower, the Required Lenders and the Administrative Agent, (ii) the Required Lenders shall have Consent and Reaffirmation attached hereto duly executed and delivered counterparts of this Amendment to by the Administrative Agent Subsidiary Guarantors and (iii) the Administrative Agent Pledge Agreement duly executed by the applicable Loan Parties and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;Agent.
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party (i) certifying (w) that there have been no changes in the Certificate of Incorporation or other charter document of such Loan Party, as attached thereto and as certified as of a certificate recent date by the Secretary of each BorrowerState (or analogous governmental entity) of the jurisdiction of its organization, dated since the Amendment No. 1 Effective Date and executed date of the certification thereof by its Secretary such governmental entity, (x) that there have been no changes to the By-Laws or Assistant Secretaryother applicable organizational document of such Loan Party since August 30, which shall 2017, or that if there have been changes thereto since such date, attaching thereto the current version thereof as in effect on the date of such certification, (Ay) certify the resolutions of its the Board of Directors or other governing body of such Loan Party authorizing the execution, delivery and performance of this AmendmentAmendment and each Loan Document (as amended hereby) to which it is a party, and (Bz) identify by name the names and title and bear the true signatures of the Financial Officers and any other incumbent officers of such Borrower each Loan Party authorized to sign this Amendmentthe Loan Documents to which it is a party, and (Cin the case of the Borrower) contain appropriate attachmentsauthorized to request a Borrowing or the issuance of a Letter of Credit under the Amended Credit Agreement and (ii) attaching a Good Standing Certificate (or analogous documentation if applicable) for such Loan Party from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, including to the certificate or articles extent generally available in such jurisdiction.
(c) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated as of incorporation or organization the date hereof) of (i) ▇▇▇▇▇ Lovells US LLP, special New York and Delaware counsel to the Loan Parties and (ii) internal counsel to the Loan Parties as to certain corporate capacity and authorization matters and non-New York, non-federal and non-Delaware law matters, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Parties, the Loan Documents, this Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrower certified by hereby requests such counsels to deliver such opinions.
(d) The Administrative Agent shall have received:
(i) the relevant authority results of a recent lien search in the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization Loan Party and each other jurisdiction required by the Administrative Agent, and such searches shall reveal no Liens on any of the Equity Interests owned by the Loan Parties except for liens discharged on or prior to the date hereof pursuant to a pay-off letter or other documentation reasonably satisfactory to the Administrative Agent;
(ii) the certificates representing the Equity Interests pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in which it carries on business as may blank by a duly authorized officer of the pledgor thereof in each case, to the extent required to be delivered pursuant to the Pledge Agreement; and
(iii) each document (including any Uniform Commercial Code financing statements) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, which shall be in proper form for filing, registration or recordation.
(e) To the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice to the Borrower at least five (5) Business Days days prior to the Amendment No. 1 Effective Date;
date hereof, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (e) provided that, upon the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery by such Lender of its signature page to this Amendment and Amendment, the other instruments and documents to be delivered hereunder, if any (but limited, condition set forth in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1this clause
Appears in 2 contracts
Sources: Credit Agreement (Papa Johns International Inc), Credit Agreement (Papa Johns International Inc)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof No. 3 shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each upon satisfaction of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers Agent shall have executed and delivered counterparts received eight (8) copies of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have No. 3 duly executed by each Borrower and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendmenteach Lender;
(b) Agent shall have received, for the representations and warranties pro rata benefit of the Borrowers Lenders based upon their respective Term Loan C Commitments, the sum of $37,500 representing a one-quarter of one-percent (x0.25%) contained in Section 3 hereof funding fee with respect to Term Loan C, which shall be true fully earned on the Amendment No. 3 Closing Date and correct in all material respects on and not subject to rebate, refund, proration and/or reduction for any reason;
(c) Agent shall have received a Term Note C dated as of the Amendment No. 1 Effective Date; provided that 3 Closing Date for each Lender, evidencing Borrowers’ Obligations with respect to the extent that each such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects Lender’s respective Term Loan C Commitments as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit form annexed hereto as Exhibit A, properly completed with respect to the applicable amount due each Lender;
(d) Agent shall have received evidence, in form and substance acceptable to Agent, of a $15,000,000 cash prepayment of Term Loan B;
(e) Agent shall have received eight (8) copies of Amendment No. 1 to Intercreditor Agreement are true and correct on and in the form annexed hereto as Exhibit B dated as of the Amendment No. 1 Effective 3 Closing Date duly executed by ACAS;
(f) Agent shall have received a true and correct copy of an amendment to the Note Purchase Agreement in form and substance satisfactory to Agent in all material respects with the same respects;
(g) Undrawn Availability shall be not less than $6,000,000 after giving effect as though made to all transactions contemplated herein on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)3 Closing Date;
(ch) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of Secretary’s Certificates from each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors Borrower authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable 3 in form and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents substance acceptable to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(fi) the Borrower Agent shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses have received opinions of counsel from counsel to the Amendment No. 1 Arranger) required each Borrower in form and substance satisfactory to be paid on the Amendment No. 1Agent.
Appears in 2 contracts
Sources: Loan and Security Agreement (Rocky Brands, Inc.), Loan and Security Agreement (Rocky Brands, Inc.)
Conditions of Effectiveness. This Amendment The effectiveness of this Agreement and the amendment obligation of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred each Term Lender to as the “Amendment No. 1 Effective Date”) when each make its Term Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall have been satisfiedbe originals, or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, the Borrower’s Instruction Certificate and the Borrower Remittance Instructions, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note executed by the Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iii) a duly completed Borrower’s Instruction Certificate executed by a Responsible Officer of the Borrower, together with such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of organization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions addressed and reasonably satisfactory to the Administrative Agent, the Issuing Banks and the Lenders, from counsel reasonably acceptable to the Administrative Agent, as to the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse Effect and (D) a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter of the REIT ended September 30, 2017;
(viii) a Solvency Certificate from the REIT certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), each Loan Party is, individually and together with its Subsidiaries on a consolidated basis, Solvent;
(ix) a duly completed compliance certificate, giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date);
(x) duly completed Borrower Remittance Instructions signed by a Responsible Officer of the Borrower;
(xi) the financial statements referenced in Section 5.05(a) and (b);
(xii) evidence that each of the Existing BANA Credit Agreement, the Existing PNC Credit Agreement and the Existing WFB Credit Agreement and all documents entered into in connection with each such agreement, shall have been terminated in full (except to the extent that provisions of any such document by its express terms survives termination thereof) and all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith (other than any contingent obligation not yet due and payable) shall have been paid in full and all commitments thereunder shall have been terminated, or concurrently with the Closing Date is being, terminated and paid in full; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender, the Required Lenders or the Required Term Lenders reasonably may require.
(b) Any fees required hereunder or under the Fee Letters to be paid on or before the Closing Date shall have executed been paid.
(c) Completion of all due diligence with respect to the REIT, the Borrower, and delivered counterparts their respective Subsidiaries and properties in scope and determination satisfactory to the Administrative Agent, the Bookrunner, the Arrangers and the Lenders in their sole discretion.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of this Amendment counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (iiiprovided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(e) At least ten Business Days prior to the Closing Date, the Administrative Agent and the Multicurrency Administrative Agent each Lender shall have executed a counterpart of this Amendment;
(b) the representations received documentation and warranties other information with respect to each of the Borrowers Loan Parties that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (xTitle III of Pub. L. 107-56 (signed into law October 26, 2001)) contained and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 3 hereof 4.01, each Lender that has signed this Agreement shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that deemed to the extent that such representations and warranties specifically refer have consented to, approved or accepted or to an earlier datebe satisfied with, they shall each document or other matter required thereunder to be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as consented to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation approved by or warranty which by its terms is made as of acceptable or satisfactory to a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) Lender unless the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of notice from such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days Lender prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Acadia Realty Trust), Credit Agreement (Acadia Realty Trust)
Conditions of Effectiveness. This Fifth Amendment and shall not be effective until the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have precedent has been satisfied:
(ia) the Borrowers shall have executed and delivered counterparts Administrative Agent has received a counterpart of this Fifth Amendment to (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentLenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the Borrowers (x) contained in Section 3 hereof shall be Credit Agreement are true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such date (unless such representations and warranties specifically refer to an earlier date, they in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided), further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (yii) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be continuingexpected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(dg) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures on behalf of the Financial Officers Exiting Lenders) funds necessary to pay all principal, interest, fees and any other officers of such Borrower authorized charges owed to sign this Amendment, and the Exiting Lenders under the Loan Documents; and
(Cj) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each has received such other jurisdiction in which it carries on business documents as may be reasonably requested required by the Administrative Agent at least five or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (5other than an Exiting Lender) Business Days prior that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the Amendment Norequirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). 1 Effective Date;
Upon the satisfaction (eor waiver in accordance with Section 10.01 of the Credit Agreement) of the Borrowers shall pay all reasonable and documented out-of-pocket expenses of conditions set forth in this Section 4, the Administrative Agent incurred in connection with shall promptly provide written notice to the preparationBorrower, execution the Lenders (including the Exiting Lenders) and delivery L/C Issuer of the effectiveness of this Amendment Fifth Amendment, and the other instruments such notice shall be conclusive and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1binding.
Appears in 2 contracts
Sources: Credit Agreement (Martin Midstream Partners Lp), Credit Agreement
Conditions of Effectiveness. This (a) Sections 2, 4, 5, 6, 7, 8 and 9 of this Amendment (but no other portions hereof) shall become effective as of the date first above written (the “Waiver Effective Date”) upon satisfaction of each of the following conditions precedent:
(i) The Administrative Agent shall have received (A) counterparts of this Amendment executed by the Borrower and each Lender the amendment consent of which is required for effectiveness of the Limited Waiver pursuant to Section 9.01 of the Credit Agreement or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (B) the consent attached hereto (the “Consent”) executed by each of the Guarantors.
(ii) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Waiver Effective Date, after giving effect to Section 2 hereof, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Waiver Effective Date, in which case as of such specific date).
(iii) After giving effect to Section 2 hereof, no event shall have occurred and be continuing that constitutes a Default or Event of Default.
(b) All remaining provisions of this Amendment shall become effective as of such date as the Administrative Agent shall designate in writing to the Lenders as the effective date of the Current Reallocation (the “Amendment Effective Date”) upon satisfaction of each of the following conditions precedent:
(i) The conditions to effectiveness of the Waiver Effective Date set forth in Section 5(a) shall have been satisfied.
(ii) The Administrative Agent shall have received counterparts of this Amendment executed by each Lender and each Issuing Bank the consent of which is required for effectiveness of the amendments set forth in Section 1 hereof shall become effective as pursuant to Section 9.01 of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied:Credit Agreement.
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency The Administrative Agent shall have executed received a counterpart replacement Note payable to the order of this Amendment;each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(biv) the The representations and warranties set forth in each of the Borrowers (x) contained in Section 3 hereof Loan Documents shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that , after giving effect to the extent that such representations Section 2 hereof and warranties specifically refer before and after giving effect to an earlier dateeach other provision of this Amendment, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty Date, in which by its terms is made as of a specified date shall be be true and correct in all material respects only case as of such specified specific date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);.
(cv) prior to and immediately after After giving effect to this AmendmentSection 2 hereof, no Default or Event of Default event shall have occurred and be continuing;
(d) , or shall result from the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance effectiveness of this Amendment, that constitutes a Default or Event of Default.
(Bvi) identify by name and title and bear the signatures All of the Financial Officers fees and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with (including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to for the Amendment No. 1 ArrangerAdministrative Agent) required to be paid due and payable on the Amendment NoEffective Date shall have been paid in full.
(c) The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. 1This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Digital Realty Trust, L.P.), Revolving Credit Agreement (Digital Realty Trust, Inc.)
Conditions of Effectiveness. This The effectiveness of this Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each is subject to the satisfaction of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers The Administrative Agent shall have executed and delivered received counterparts of this Amendment to duly executed by the Borrowers, each Lender, the Issuing Bank, the Swingline Lender and the Administrative Agent, .
(iib) the Required Lenders The Administrative Agent shall have executed and delivered counterparts of this Amendment received favorable written opinions (addressed to the Administrative Agent and (iii) the Administrative Agent Lenders and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of dated the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as ) of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Borrowers, (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, general counsel for the Borrowers and (iii) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ counsel for the Foreign Subsidiary Borrower, in each case covering such other matters relating to the Borrowers, this Amendment or the Amended Credit Agreement as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsels to deliver such opinions.
(c) The Administrative Agent shall have received (i) a certificate signed by a Financial Officer of the Company certifying that, after giving effect to this Amendment, the Company is in compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement and (ii) documents consistent with those delivered on the Effective Date of the Credit Agreement as to the corporate power and authority of the Borrowers to execute and deliver this Amendment and to borrow under and perform its obligations under the Amended Credit Agreement.
(d) The Administrative Agent shall have received, for the account of each Lender party hereto that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent, an upfront fee in an amount equal to the amount previously disclosed to the Lenders.
(e) the Administrative Agent shall have made such reallocations, if any, of each Lender’s Applicable Percentage of the total Revolving Credit Exposures under the Credit Agreement as are necessary in order that the Revolving Credit Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of the total Revolving Credit Exposures under the Amended Credit Agreement. The Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans and the reallocation described in this Section 4(e); and, in each case on the terms and in the manner set forth in Section 2.16 of the Credit Agreement.
(f) The Administrative Agent shall have received payment of the Borrower shall pay all reasonable fees Administrative Agent’s and expenses due to the Amendment No. 1 Arranger (including, without limitation, its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel to for the Amendment No. 1 ArrangerAdministrative Agent) required to be paid on the Amendment No. 1in connection with this Amendment.
Appears in 2 contracts
Sources: Credit Agreement (Masco Corp /De/), Credit Agreement (Masco Corp /De/)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when on which each of the following conditions shall have been satisfied:
(ia) the Borrowers The Administrative Agent shall have executed and delivered received counterparts of this Amendment duly executed by (i) with respect to all amendments and other modifications to the Administrative AgentCredit Agreement contemplated by this Amendment other than the amendment to the definition of “Maturity Date”, (ii) the Borrowers, the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iiiii) solely with respect to the amendment to the definition of “Maturity Date”, the Borrowers and the Administrative Agent and the Multicurrency Agent.
(b) The Administrative Agent shall have received counterparts of the Consent and Reaffirmation attached as Exhibit A hereto duly executed a counterpart of this Amendment;by the Guarantors.
(bc) the representations and warranties The Administrative Agent shall have received a certificate of a Financial Officer of the Borrowers Company (xi) contained attaching Financials for the Company’s fiscal quarter ending December 31, 2020, together with the compliance certificate required by Section 5.01(c) of the Credit Agreement demonstrating that the Company was in compliance with Section 3 hereof shall be true and correct 6.12 of the Credit Agreement as such Section 6.12 was in all material respects effect on and as of the Amendment No. 1 4 Effective Date; provided that Date immediately prior to the extent that such representations and warranties specifically refer giving effect to an earlier dateAmendment No. 4, they shall be true and correct in all material respects as of the end of such earlier date; provided, further, fiscal quarter (ii) notifying the Administrative Agent that any representation and warranty that is qualified as the Company elects to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates end the Covenant Suspension Period and (yiii) set forth certifying that a “Covenant Reset Event” (as defined in the Credit Agreement are true and correct Second Lien Notes Indenture as in effect on and as of the Amendment No. 1 4 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(cDate) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;has occurred.
(d) the The Administrative Agent shall have received (i) a certificate for the account of each Borrower, dated Lender that delivers its executed signature page to this Amendment by no later than the Amendment No. 1 Effective Date date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified time specified by the relevant authority of Administrative Agent, a consent fee in an amount equal to the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes applicable amount previously disclosed to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), Lenders and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization all fees and each other jurisdiction in which it carries amounts due and payable on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days or prior to the Amendment No. 1 Effective Date;
(e) , including, to the Borrowers shall pay extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be reimbursed or paid on by the Company under the Amended Credit Agreement. The Administrative Agent shall notify the Company and the Lenders of the Amendment No. 1Effective Date, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (CIMPRESS PLC), Credit Agreement (CIMPRESS PLC)
Conditions of Effectiveness. This Amendment and (including, without limitation, the amendment of the Credit Agreement as amendments set forth in Section 1 hereof shall become effective as of hereof) is subject to the first date satisfaction (such date being referred to as the “Amendment No. 1 Effective Date”or waiver) when each of the following conditions (the date of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):
(a) the Administrative Agent shall have been satisfied:
(i) the Borrowers shall have executed and delivered received counterparts of this Amendment to the Administrative Agentduly executed by (i) each Loan Party, (ii) the Required Consenting Revolving Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent;
(b) the Administrative Agent (or its counsel) shall have received a legal opinion from H▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, in form and substance reasonably satisfactory to the Multicurrency Consenting Revolving Lenders;
(c) the Administrative Agent shall have executed received certificates of good standing from the secretary of state of the state of organization of each Loan Party (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of each Loan Party certifying true and complete copies of the Organizational Documents attached thereto and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a counterpart Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party on the Second Amendment Effective Date;
(d) all expenses incurred by (i) the Revolving Lenders (including reasonable and documented fees and out-of-pocket expenses of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP), (ii) the Administrative Agent (including reasonable and documented fees and out-of-pocket expenses of ArentFox Schiff LLP), in the case of clauses (i) and (ii) hereof, in connection with the execution and delivery of this Amendment, and (iii) the Revolving Lenders (including reasonable and documented fees and out-of-pocket expenses of legal counsel other than L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP) in connection with the First Amendment not otherwise reimbursed prior to the Second Amendment Effective Date, in an aggregate amount not to exceed $50,000, shall have been paid in full in cash or will be paid in full in cash substantially concurrently with the occurrence of the Second Amendment Effective Date;
(be) Holdings shall have entered into that certain Agreement and Plan of Merger entered into by and among Bandit Parent, LP, a Delaware limited partnership and Bandit Merger Sub, Inc., a Delaware corporation (the “Merger Agreement”);
(f) the representations and warranties of the Borrowers (x) Borrower contained in Section 3 hereof Article V of the Existing SP Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of the Second Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; providedprovided further that, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)dates;
(cg) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;continuing as of the Second Amendment Effective Date or would result after giving effect to this Amendment; and
(dh) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures a Responsible Officer of the Financial Officers Borrower certifying that the conditions set forth in Section 2(f) and any other officers of such Borrower authorized to sign this Amendment, and (CSection 2(g) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there hereof have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1satisfied.
Appears in 2 contracts
Sources: Super Priority Credit Agreement (WideOpenWest, Inc.), Super Priority Credit Agreement (WideOpenWest, Inc.)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date when, and only when (such date being referred to as the “Amendment No. 1 2 Effective Date”) when ), each of the following conditions precedent shall have been satisfiedsatisfied or waived:
(i) the Borrowers The Administrative Agent shall have executed and delivered received counterparts of this Amendment to executed by (A) the Administrative AgentBorrower and AMR, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iiiB) the Administrative Agent and the Multicurrency Collateral Agent and (C) each of the Required Lenders, or as to any such Lender, advice satisfactory to the Administrative Agent shall have that such Lender has executed a counterpart of this Amendment;.
(bii) A certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as date of the Amendment No. 1 2 Effective Date; provided that , certifying as to (i) the extent that such truth of the representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth contained in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect Financing Documents as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as date of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 2 Effective Date and executed by its Secretary Date, except to the extent that any such representation or Assistant Secretarywarranty relates to a specified date, in which case such representation or warranty shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate be or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a was true and correct copy as of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date)date, and (ii) the absence of any event occurring and continuing, or resulting from the Amendment No. 2 Effective Date, that constitutes a certificate Default or an Event of compliance/status/good standing, as applicableDefault.
(iii) The Borrower shall have paid (a) to the Administrative Agent, for the benefit of each Borrower from its jurisdiction Term 2 Lender executing this Amendment on or before May 15, 2008, a fee equal to 3.50% of organization the aggregate principal amount of the Term 2 Advances of each such Lender outstanding on the date hereof, (b) to the Administrative Agent, for the benefit of each Revolving Credit 1 Lender executing this Amendment on or before May 15, 2008, a fee equal to 1.50% of the Revolving Credit 1 Commitment of each such Lender in effect on the date hereof and each other jurisdiction in which it carries on business as may be reasonably requested by (c) all invoiced accrued fees and expenses of the Administrative Agent (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel for the Administrative Agent, for which invoices shall have been provided to the Borrower at least five (5) two Business Days prior to the Amendment No. 1 2 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1.
Appears in 2 contracts
Sources: Credit Agreement (American Airlines Inc), Credit Agreement (Amr Corp)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 6 Effective Date”, which date is January 4, 2017) when each of the following conditions shall have been satisfied:
(ia) the Borrowers The Administrative Agent shall have executed and delivered received counterparts of this Amendment to duly executed and delivered by (A) the Borrower, (B) the MLP, (C) the Consenting Lender and (D) the Administrative Agent, .
(iib) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency The Administrative Agent shall have executed a counterpart received, on behalf of this Amendment;
(b) itself and the representations and warranties of Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and Credit Parties, dated as of the Amendment No. 1 6 Effective Date; provided that Date and addressed to the extent that such representations Administrative Agent and warranties specifically refer the Consenting Lender, in form and substance reasonably satisfactory to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);Administrative Agent.
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate certificates of each Borrower, dated good standing (to the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (Aextent such concept exists) certify from the resolutions applicable secretary of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures state of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction state of organization of such Borrower and a true and correct copy each Credit Party, certificates of its bylaws (resolutions or a confirmation that there have been no changes to such documents since those that were delivered to other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent on may reasonably require evidencing the Second identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Effective Date), and (ii) a certificate certificate, dated as of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 6 Effective Date;, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 2(e) and (f) of this Amendment.
(ed) Payment by the Borrowers shall pay Borrower of (x) all reasonable fees and documented expenses due to the Administrative Agent and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Arranger”), including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses of (including the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
) and (fy) a consent fee, payable to the Borrower shall pay all reasonable fees and expenses due Consenting Lender for its own account, in an amount equal to 0.25% of the Revolving Loan Commitments of the Consenting Lender as of the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 16
Appears in 2 contracts
Sources: Revolving Credit Agreement (OCI Partners LP), Revolving Credit Agreement
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as The amendments set forth in Section 1 hereof 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall become be effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each , subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have been satisfiedreceived each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Borrowers shall have executed and delivered counterparts a counterpart of this Amendment to executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Required Lenders shall have Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and delivered counterparts genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(iiivii) an opinion of T▇▇▇▇▇▇▇ P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel to the Administrative Agent New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(x) a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the Multicurrency Administrative Agent shall have executed a counterpart of other transactions contemplated by this Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and expenses referred in Section 12.3 of the Credit Agreement, to the extent invoiced on or prior to the date hereof;
(d) no Default (other than the Specified Default) shall have occurred and be continuing, and since the effective date of the most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(e) the representations and warranties of the Borrowers (x) contained set forth in Section 3 7 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1hereof.
Appears in 2 contracts
Sources: Credit Agreement (StratCap Digital Infrastructure REIT, Inc.), Credit Agreement (StratCap Digital Infrastructure REIT, Inc.)
Conditions of Effectiveness. This Second Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall will become effective as of on the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when on which each of the following conditions precedent are satisfied or waived (the “Second Amendment Effective Date”):
(a) The Administrative Agent shall have been satisfied:
received from the Borrower, the General Partner, the Parent, each other Obligor and the Lenders, counterparts (i) the Borrowers shall have executed and delivered counterparts of this Amendment to in such number as may be requested by the Administrative Agent) of this Second Amendment signed on behalf of such Person.
(b) The Administrative Agent shall have received a certificate of a Responsible Officer, certifying that the Parent and Finance Co. are concurrently issuing Senior Notes under the Senior Indenture in an amount equal to $400,000,000, and the net cash proceeds therefrom are being applied concurrently with such issuance to prepay all Debt outstanding under the Second Lien Term Loan Agreement and prepay Loans (iiand cash collateralize Letters of Credit, if necessary) to eliminate any Borrowing Base Deficiency.
(c) The Administrative Agent and the Required Lenders shall have executed received, and delivered counterparts be satisfied with the terms of, a copy of this the preliminary offering memorandum, the final offering memorandum and any other material documents relating to the offering of Senior Notes on the Second Amendment Effective Date.
(d) The Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Administrative Agent with respect to all Debt outstanding under the Second Lien Term Loan Agreement evidencing that all commitments to make any extension of credit under the Second Lien Term Loan Agreement shall have been terminated contemporaneously with the Second Amendment Effective Date and (iii) all amounts thereunder shall have been paid in full contemporaneously with the Second Amendment Effective Date; with all liens and surety obligations in favor of the Second Lien Administrative Agent and the Multicurrency Second Lien Lenders thereunder being unconditionally released, subject only to the filing of applicable terminations, releases or assignments.
(e) The Administrative Agent and the Lenders shall have executed a counterpart of this Amendment;received all fees and other amounts due and payable on or prior to the date hereof.
(bf) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no No Default or Event of Default shall have occurred and be continuing;continuing as of the Second Amendment Effective Date.
(dg) the The Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any such other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to as the Administrative Agent on the or its special counsel may reasonably require. The Administrative Agent is hereby authorized and directed to declare this Second Amendment Effective Date), and (ii) a certificate to be effective when it has received documents confirming compliance with the conditions set forth in this Section 3 or the waiver of compliance/status/good standing, such conditions as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested agreed to by the Administrative Agent at least five (5) Business Days prior Lenders. Such declaration shall be final, conclusive and binding upon all parties to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay Credit Agreement for all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1purposes.
Appears in 1 contract
Conditions of Effectiveness. This (a) The effectiveness of Section 2 of this Amendment and shall be subject to the amendment satisfaction of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfiedprecedent:
(i1) the Borrowers The Administrative Agent shall have received from the Company and the Required Lenders a duly executed and delivered counterparts original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment Amendment.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Company party to the Pledge Agreement, the Interco Subordination Agreement, the Security Agreement and the Subsidiary Guaranty, in form and substance satisfactory to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment in their capacities as such, to the Administrative Agent execution and (iii) delivery hereof by the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;Company.
(b3) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received evidence of payment by the Company of all fees, costs and expenses due and payable as of the date hereof hereunder and under the Credit Agreement, including any costs and expenses payable under Section 5(g) of this Amendment (iincluding the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the date hereof).
(4) a certificate The Administrative Agent shall have received from the Company, in form and substance satisfactory to the Administrative Agent, copies of each Borrowerthe resolutions passed by the board of directors of the Company, dated certified as of the Amendment No. 1 Effective Date and executed date hereof by its the Secretary or an Assistant SecretarySecretary of the Company, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures together with such incumbency certificates and/or other certificates of Responsible Officers of the Financial Officers Company, as the Administrative Agent may require to establish the identities of and any other officers verify the authority and capacity of such Borrower each Responsible Officer thereof authorized to sign act as such in connection with this AmendmentAmendment and each other Loan Document to which the Company is a party.
(5) The Administrative Agent shall have received all other documents it or the Required Lenders may reasonably request relating to any matters relevant hereto, all in form and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered substance satisfactory to the Administrative Agent on Agent.
(b) For purposes of determining compliance with the Second Amendment Effective Dateconditions specified in Section 4(a), and (ii) a certificate of compliance/status/good standingeach Lender that has executed this Amendment shall be deemed to have consented to, as applicableapproved or accepted, or to be satisfied with, each document or other matter either sent, or made available for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested inspection, by the Administrative Agent at least five to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(5c) Business Days prior to From and after the Amendment No. 1 Effective Date;, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(ed) The Administrative Agent will notify the Borrowers shall pay all reasonable Company and documented out-of-pocket expenses the Lenders of the Administrative Agent incurred satisfaction of the conditions precedent in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Section 4.
Appears in 1 contract
Sources: Amendment Agreement (Solectron Corp)
Conditions of Effectiveness. This Amendment The obligations of the C2 Incremental Term Lenders to make C2 Incremental Term Loans under the Amended Credit Agreement and the amendment of amendments to the Credit Agreement as set forth contained in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 6 Effective Date”) when each of on which the following conditions shall have been satisfied:satisfied (or waived by the Lenders party hereto and the C2 Incremental Term Lenders):
(a) The Administrative Agent shall have received counterparts of (i) the Borrowers shall have executed and delivered counterparts of this Amendment to executed by the Borrower, the Administrative Agent, the Priority Revolving Agent, the Lenders party hereto and the C2 Incremental Term Lenders and (ii) the Required Lenders shall have Guarantor Consent and Reaffirmation attached hereto (the “Guarantor Consent”) executed and delivered counterparts of this Amendment to the Administrative Agent and by each Guarantor.
(iiib) the Administrative Agent and the Multicurrency The Administrative Agent shall have executed received a counterpart of customary legal opinion from (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties and (ii) each local counsel to the Loan Parties listed on Schedule 4(b) to this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);.
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default The Administrative Agent shall have occurred received, with respect to each Loan Party, certificates of good standing from the secretary of state of the state of organization of each Loan Party (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of each Loan Party certifying true and be continuing;complete copies of the Organizational Documents attached thereto and evidencing the identity, authority and capacity of such Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Guarantor Consent.
(d) the The Administrative Agent shall have received (i) a certificate Committed Loan Notice no later than 1:00 p.m., New York time, three (3) Business Days (in the case of Term SOFR Rate Loans) or two (2) Business Days (in the case of Base Rate Loans), in each Borrower, dated case prior to the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures requested date of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority Borrowing in respect of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws C2 Incremental Term Loans (or a confirmation in each case such shorter notice that there have been no changes to such documents since those that were delivered shall be acceptable to the Administrative Agent on the Second Amendment Effective Date), in its discretion) and (ii) a certificate an Incremental Loan Request; provided that this Amendment shall be deemed to be the Incremental Loan Request with respect to the C2 Incremental Term Loans for purposes of compliance/status/good standingthe Amended Credit Agreement and all parties hereto hereby agree that this Amendment shall satisfy all requirements under the Amended Credit Agreement for the Incremental Loan Request with respect to the C2 Incremental Term Loans.
(e) All fees (including fees required to be paid pursuant to the C2 Incremental Fee Letter) and expenses (in the case of expenses, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by to the Administrative Agent extent invoiced at least five three (53) Business Days prior to the Amendment No. 1 6 Effective Date;
Date (eexcept as otherwise reasonably agreed by the Borrower)) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents required to be delivered hereunder, if any (but limited, in paid under the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due Credit Agreement on or prior to the Amendment No. 1 Arranger 6 Effective Date shall have been paid, or shall be paid substantially concurrently with the Borrowing of the C2 Incremental Term Loans on the Amendment No. 6 Effective Date.
(includingf) The Administrative Agent and the C2 Incremental Term Lenders shall have received copies of (i) Convey Parent’s audited consolidated financial statements as of December 31, without limitation2021, fees consisting of the consolidated balance sheet as of such date and reasonable outthe related consolidated statements of income and cash flows and (ii) with respect to the fiscal quarters ending March 31, 2022 and June 30, 2022, Convey Parent’s unaudited consolidated financial statements for each such fiscal quarter, consisting of the unaudited consolidated balance sheet as of each such date and the related unaudited statement of income for such fiscal quarter and for the portion of the fiscal year then ended and cash flows for the portion of the fiscal year then ended (subject in each case of clause (ii) to (x) the absence of footnote disclosures and other presentation items and (y) changes resulting from year-ofend adjustments); provided that the Administrative Agent and the C2 Incremental Term Lenders hereby acknowledge receipt of each of the foregoing financial statements specified in clauses (i) and (ii) above.
(g) The Administrative Agent and the C2 Incremental Term Lenders shall have received a pro forma unaudited consolidated balance sheet of Convey Parent as of June 30, 2022, prepared after giving effect to the C2 Transactions as if the C2 Transactions had occurred as of such date, which need not be prepared in compliance with Regulation S-pocket expenses X of counsel the Securities Act of 1933, as amended, or include adjustments for purchase accounting.
(h) To the extent such documentation and information has not previously been delivered in connection with the funding of the Closing Date Term Loans, the 2020 Incremental Term Loans, the 2021 Incremental Term Loans and/or the 2022 Incremental Term Loans, the Administrative Agent shall have received at least two (2) Business Days prior to the Amendment No. 1 Arranger6 Effective Date (or such shorter period as may be acceptable to the Administrative Agent) all documentation and other information in respect of the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations (including the USA PATRIOT Act) that has been reasonably requested in writing by the Administrative Agent at least ten (10) Business Days prior to be paid on the Amendment No. 16
Appears in 1 contract
Sources: First Lien Credit Agreement (Convey Health Solutions Holdings, Inc.)
Conditions of Effectiveness. (1) This Amendment Agreement (other than Section 2 and the amendment of the Credit Agreement as set forth in Section 1 hereof 3 hereof) shall become effective as of the first date when, and only when, the following conditions have been satisfied (such date being referred to as the “Amendment No. 1 Replacement Loan Effective Date”):
(a) when Receipt by the Agent (or by the Agent’s counsel on its behalf) of the following, each of which shall be originals or scanned versions (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the following conditions shall have been satisfiedsigning Loan Party:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment Agreement duly executed by (A) each Replacement Term A Lender, (B) each Borrower, (C) each Guarantor, (D) Citibank, N.A., as the Existing Agent and as the Additional Collateral Agent, and (E) Bank of America, N.A., as the New Agent and as the Agent;
(ii) not later than four (4) Business Days immediately preceding the Replacement Loan Effective Date, one or more Notices of Borrowing delivered in respect of the Replacement Term A Advances and a notice of prepayment as required by Section 2.11 of the Existing Credit Agreement with respect to the Administrative Replaced Term Loans (as defined in the Existing Credit Agreement);
(iii) a certificate of a secretary or assistant secretary (or equivalent position) of each Loan Party, together with appropriate attachments which shall include the following items: (A) a true, complete and correct copy of the articles of incorporation, certificate of limited partnership, certificate of formation or organization or other constitutive document of such Loan Party, to the extent applicable certified by an appropriate Governmental Authority, (B) a true, complete and correct copy of the by-laws, partnership agreement or limited liability company or operating agreement (or other applicable organizational document) of such Loan Party, (C) a certified copy of the resolutions of the board of directors, board of managers or other appropriate entity of each of the Borrowers and each Guarantor authorizing the execution, delivery and performance by such Person of this Agreement and the transactions contemplated hereby and (D) certificates of legal existence and good standing, to the extent available, of such Loan Party issued by an appropriate Governmental Authority;
(iv) a favorable opinion addressed to the Agent, the Lenders and each Issuing Bank from (i) ▇▇▇▇▇▇▇▇ Chance US LLP, special New York counsel to the Loan Parties, (ii) special counsel for certain Subsidiaries of the Required Lenders shall have executed Company in each of the jurisdictions in which the Agent may reasonably request, in each case, in form and delivered counterparts of this Amendment substance reasonably satisfactory to the Administrative Agent Agent; and (iii) King & Wood Mallesons, Australian counsel to the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentAgent, for those Loan Parties incorporated in Australia;
(bv) a certificate of a Financial Officer of the Company attesting to the Solvency (as defined in the Solvency Certificate) of the Loan Parties (taken as a whole) on the Replacement Loan Effective Date from a Responsible Officer of the Company;
(vi) a certificate from a Responsible Officer of each Borrower and each Guarantor (which may be the same Responsible Officer if duly qualified as such for each Borrower and each Guarantor, or for any subset thereof), in form and substance reasonably satisfactory to the Agent and dated as of the Replacement Loan Effective Date, certifying that (x) no Default or Event of Default has occurred and is continuing and (y) the representations and warranties of set forth in the Borrowers (x) contained in Section 3 hereof shall be Second Amended and Restated Credit Agreement are true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, date and except to the extent that any representation such representations and warranty that is warranties are already qualified as to “materiality,” “Material Adverse Effect” or similar language , in which case such qualified representations and warranties shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed correct; provided that any representation or warranty which by its terms is made as of a representations and warranties with respect to the Collateral Documents and related matters specified date on Schedule 5.01(m) hereto shall only be required to be true and correct in all material respects only as of the time period specified for execution and effectiveness of such specified date, Collateral Documents and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)related matters;
(cvii) subject to Section 9, satisfactory evidence of the existence of insurance required to be maintained by the Loan Parties, together with customary certificates of insurance and endorsements naming the Agent, on behalf of the Lenders, as an additional insured or lenders’ loss payee, as the case may be, under all such insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(a) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Company and its Subsidiaries for each of the last three fiscal years most recently ended, and (b) unaudited consolidated balance sheets and related statements of income and cash flows of each of Company and its Subsidiaries for each subsequent fiscal quarter ended at least 45 days before the Second Restatement Effective Date and after December 31, 2013;
(ix) all documentation and other information that is (a) requested by the Agent (including on behalf of a Lender at such Lender’s request) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Replacement Loan Effective Date and executed (b) required by its Secretary or Assistant Secretaryregulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, which shall including without limitation the Patriot Act; and
(x) (A) certify a standard flood hazard determination form ordered by the resolutions Agent evidencing whether each Mortgaged Property in the United States of its Board of Directors authorizing America is in an area designated by the execution, delivery Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”) and performance of this Amendmentwhether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program, (B) identify by name for each Flood Hazard Property, the applicable Loan Party’s written acknowledgment of receipt of written notification from the Agent as to the fact that such Mortgaged Property is a Flood Hazard Property and title and bear as to whether the signatures of community in which each such Flood Hazard Property is located is participating in the Financial Officers and any other officers of such Borrower authorized to sign this AmendmentNational Flood Insurance Program, and (C) contain appropriate attachmentsfor each Flood Hazard Property, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority copies of the jurisdiction applicable Loan Party’s application for a flood insurance policy plus proof of organization of such Borrower premium payment, and a true declaration page confirming that flood insurance has been issued naming the Agent as sole loss payee on behalf of the Secured Parties.
(b) Since December 31, 2013, there shall not have occurred any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect.
(c) The Borrowers shall have paid:
(i) all accrued fees of the Agent, of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities LLC, BNP Paribas Securities Corp., Citigroup Global Markets Inc., Crédit Agricole Corporate and correct copy Investment Bank, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and RBS Securities, as lead arrangers in respect of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and this Agreement; and
(ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparationAgent, execution of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities LLC, BNP Paribas Securities Corp., Citigroup Global Markets Inc., Crédit Agricole Corporate and delivery of this Amendment and the other instruments and documents to be delivered hereunderInvestment Bank, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPSenior Funding, counsel to Inc. and RBS Securities, as lead arrangers in respect of this Agreement (including the Administrative Agent); and
(f) the Borrower shall pay all reasonable and documented fees and expenses due of Shearman & Sterling LLP and the other, non–United States counsel for the Agent), in each case to the Amendment No. 1 Arranger extent invoiced to the Company at least two (including, without limitation, 2) Business Days prior to the Replacement Loan Effective Date.
(d) The Borrowers shall have paid all invoiced accrued fees and reasonable and documented out-of-pocket expenses of the Existing Agent (including the reasonable and documented fees and expenses of Shearman & Sterling LLP and other counsel for the Existing Agent), in each case to the Amendment No. 1 Arrangerextent invoiced to the Company at least two (2) required Business Days prior to the Replacement Loan Effective Date.
(e) The Agent shall have received an “Australian Deed of Retirement and Appointment”, duly executed by (A) Citibank, N.A., as the Existing Agent and as the Additional Collateral Agent, and (B) Bank of America, N.A., as the New Agent and as the Agent.
(2) Section 2 of this Agreement shall become effective as of the date when, and only when, the following conditions have been satisfied (the “Incremental Effective Date”):
(a) Receipt by the Agent (or by the Agent’s counsel on its behalf) of the following, each of which shall be paid on originals or scanned versions (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Amendment No. 1signing Loan Party:
(i) counterparts of this Agreement duly executed by (A) each Incremental Term A Lender, (B) each Borrower, (C) each Guarantor, (D) Citibank, N.A., as the Existing Agent and as the Additional Collateral Agent, and (E) Bank of America, N.A., as the New Agent and as the Agent; and
(ii) not later than four (4) Business Days immediately preceding the Incremental Effective Date, one or more Notice of Borrowing delivered in respect of the Incremental Term A Advances.
(b) The Replacement Loan Effective Date shall have occurred and the Replacement Loan Refinancing shall have been consummated prior to the Incremental Effective Date in accordance with the terms hereof.
(3) Section 3 of this Agreement shall become effective as of the date when, and only when, the following conditions have been satisfied (the “Second Restatement Effective Date”):
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof Restatement shall become effective as when, and only when, (a) King & Spalding shall have received counterparts of the first date (such date being referred to as the “this Amendment No. 1 Effective Date”) when and Restatement executed by each of the Dravo Parties and the Lenders and all of the following conditions documents, each (unless otherwise indicated) being dated the date of receipt thereof by King & Spalding (which date shall have been satisfiedbe the same for all such documents), in form and substance satisfactory to the Lenders:
(i) the Borrowers shall have executed and delivered counterparts Copies of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the all documents evidencing all requisite corporate action of each Dravo Party (including any and all resolutions of its the Board of Directors of each Dravo Party) authorizing the execution, delivery and performance of this AmendmentAmendment and Restatement and the matters contemplated hereby and thereby, (B) identify by name all documents evidencing all Governmental Approvals, if any, with respect to this Amendment and title Restatement and bear the signatures of the Financial Officers matters contemplated hereby and any other officers of such Borrower authorized to sign this Amendmentthereby, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization and by-laws of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and each Dravo Party.
(ii) a A good standing certificate issued by the Secretary of compliance/status/good standing, as applicable, State of its incorporation for each Borrower from its jurisdiction Dravo Party, each dated as of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least a date not more than five (5) Business Days days prior to the Amendment No. 1 Effective Date;date hereof.
(eiii) the Borrowers shall pay all reasonable and documented out-of-pocket expenses A certificate of the Administrative Agent incurred in connection with Secretary or an Assistant Secretary of each Dravo Party certifying the preparation, execution names and delivery true signatures of the officers authorized to sign this Amendment and the Restatement on behalf of such Dravo Party and any other instruments and documents to be delivered by such Dravo Party hereunder, if any .
(but limited, in the case of legal fees and expenses, iv) Amendment to the actual reasonable First Mortgage and documented out- of-pocket feesSecurity Agreement, disbursements and other charges dated as of ▇▇January 21, 1992, by Lime in favor of the Collateral Agent, recorded in Pendleton County, Kentucky, ▇▇▇▇ ▇xecuted by Lime and the Collateral Agent.
(v) A signed copy of a commitment for title insurance providing for a date-down endorsement to the title insurance policy issued by Commonwealth Land Title Insurance Company, Loan Policy Number E0835807, covering the land utilized by the Project in Pendleton County, Kentucky, containing s▇▇▇ exceptions as the Lenders may determine to be acceptable.
(vi) A Warranty Bill of Sale and Assignment, pursuant to which all of the personal property conveyed by Lime to Dravo Black River Limited Partnership (the "SPV") under the Warranty Bill of Sale and Assignment, dated as of ▇▇▇ust 1, 1994, by Lime to the SPV, is conveyed back to Lime, duly executed by Lime and the SPV.
(vii) An Improvements Deed, pursuant to which all of the Improvements conveyed by Lime to the SPV under the Improvements Deed, dated as of August 1, 1994, by Lime to the SPV, are conveyed back to Lime, duly executed by Lime and the SPV.
(viii) Financing Statements on Form UCC-1 covering the personal property conveyed under the Warranty Bill of Sale and Assignme▇▇ & ▇elivered pursuant to clause (vi) above, to be filed in all jurisdictions as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests of the Collateral Agent therein.
(ix) A Termination of Ground Lease, pursuant to which the Ground Lease, dated as of August 1, 1994, between Lime and the SPV will be terminated of record, duly executed by Lime and the SPV.
(x) A Termination of Easement Agreement, pursuant to which the Easement Agreement, dated as of August 1, 1994, between Lime and the SPV will be terminated of record, duly executed by Lime and the SPV.
(xi) A Termination of Mortgage Subordination Agreement, pursuant to which the Mortgage Subordination Agreement, dated as of August 1, 1994, by the Collateral Agent in favor of the SPV will be terminated of record, duly executed by the Collateral Agent and the SPV.
(xii) A favorable opinion of Buchanan Ingersoll, Profe▇▇▇▇▇▇▇ LLPCorporation, special counsel for the Dravo Parties, in form and substance satisfactory to the Administrative Agent); andLenders.
(fxiii) Such other documents, instruments, approvals (and, if required by the Borrower shall pay all reasonable fees and expenses due to Agent, certified duplicates of executed copies thereof) or opinions as the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Agent or any Lender may reasonably request.
Appears in 1 contract
Sources: Override Agreement (Dravo Corp)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each --------------------------- upon satisfaction of the following conditions precedent, each of which shall be in form and substance reasonably satisfactory to Agent and its counsel.
(a) Agent shall have been satisfied:received six (6) copies of this Amendment duly executed by each Borrower and each Lender;
(ib) the Borrowers Each Borrower shall have executed and delivered counterparts of this Amendment to the Administrative Agent, for the benefit of the respective Lenders, a Revolving Credit Note for each Lender substantially in the form annexed hereto as EXHIBIT 2.1(A);
(iic) the Required Lenders Each Borrower shall have executed and delivered counterparts to Agent, for the benefit of this Amendment to the Administrative Agent and respective Lenders, a Term Note for each Lender substantially in the form annexed hereto as EXHIBIT 2.4;
(iiid) the Administrative Agent and the Multicurrency Administrative Agent shall have received four (4) copies of the amended and restated Fee Letter, duly executed a counterpart by each Borrower, and Agent shall have received all fees payable to Agent and Lenders on or prior to the Amendment No. 1 Closing Date under the Loan Agreement (including pursuant to Article III thereof) and pursuant to the Fee Letter, and reimbursement for all fees and expenses incurred in connection with this Amendment (including, without limitation, the legal fees and expenses of this Amendmentcounsel to Agent);
(be) the representations and warranties Agent shall have received a copy of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and resolutions, dated as of the Amendment No. 1 Effective Closing Date; provided that , in form and substance reasonably satisfactory to the extent that such representations and warranties specifically refer to an earlier dateAgent, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors or the Members, as the case may be, of each Borrower authorizing the execution, delivery and performance of this Amendment, the Term Notes and any related agreements (Bcollectively the "Documents") identify certified by name the Secretary or an Assistant Secretary of each Borrower; and title and bear such certificate shall state that the signatures resolutions thereby certified have not been amended, modified, revoked or rescinded as of the Financial Officers date of such certificate;
(f) Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Borrower, dated as of the Amendment No. 1 Closing Date, as to the incumbency and any other signature of the officers of such each Borrower authorized to sign executing this Amendment, the Revolving Credit Notes, the Term Notes, and (C) contain appropriate attachments, including the any certificate or articles other documents to be delivered by it pursuant hereto, together with evidence of the incumbency of such Secretary or Assistant Secretary;
(g) Agent shall have received (i) a copy of the Articles or Certificate of Incorporation of AMC, Mercy and LifeNet, and all amendments thereto, certified by the Secretary of State or other appropriate official of its jurisdiction of incorporation or organization formation together with copies of such Borrower the By-Laws of AMC, Mercy and LifeNet and all agreements of each of AMC's, Mercy's and LifeNet's shareholders, if any, certified as accurate and complete by the relevant authority Secretary of the jurisdiction of organization of such each Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate copy of compliance/status/the Certificate of Formation of RMH, and all amendments thereto, certified by the Secretary of State or other appropriate official of its jurisdiction of formation, together with copies of the First Amended and Restated Limited Liability Company Agreement of RMH certified as accurate and complete by the Chief Financial Officer of AMC;
(h) Agent shall have received good standing, as applicable, standing certificates for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five dated not more than thirty (530) Business Days days prior to the Amendment No. 1 Effective Closing Date, issued by the Secretary of State or other appropriate official of each Borrower's jurisdiction of incorporation or formation and each jurisdiction where the conduct of each Borrower's business activities or the ownership of its properties necessitates qualification;
(ei) Agent shall have received the Borrowers shall pay all reasonable and documented out-of-pocket expenses executed legal opinion of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in form and substance reasonably satisfactory to Agent which shall cover such matters incident to the transactions contemplated by this Amendment, the Term Notes and related agreements as Agent may reasonably require and each Borrower hereby authorizes and directs such counsel to the Administrative Agent); anddeliver such opinions to Agent and Lenders;
(fj) the Borrower Agent shall pay all reasonable fees and expenses due have received a copy of a fully executed Commitment Transfer Supplement pursuant to which (x) Keybank N.A. shall have purchased, as of the Amendment No. 1 Arranger Closing Date, a portion of the interests of ▇▇▇▇▇ Fargo Bank, N.A. in the outstanding Obligations and (includingy) LaSalle Bank, without limitationN.A. shall have purchased all of the interests of ▇▇▇▇▇ Fargo Bank, fees and reasonable out-of-pocket expenses N.A. in the outstanding Obligations not purchased by Keybank N.A. as of counsel to the Amendment No. 1 ArrangerClosing Date, all in accordance with Section 16.3 of the Loan Agreement;
(k) Agent shall have received such other certificates, instruments, documents, agreements and opinions of counsel as may be reasonably required by Agent or its counsel relating to be paid on the Amendment No. 1transactions contemplated in this Amendment.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Air Methods Corp)
Conditions of Effectiveness. This (a) The effectiveness of Section 2 and Section 3 of this Amendment and shall be subject to the amendment satisfaction of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfiedprecedent:
(i1) the Borrowers The Administrative Agent shall have received from the Borrower and the Required Lenders a duly executed and delivered counterparts original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment Amendment.
(2) The Administrative Agent shall have received the consent of the Subsidiaries of the Borrower party to the Pledge Agreement, the Interco Subordination Agreement, the Security Agreement or the Guaranty, in form and substance satisfactory to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment in their capacities as such, to the Administrative Agent execution and (iii) delivery hereof by the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;Borrower.
(b3) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and expenses due and payable as of the date hereof hereunder and under the Credit Agreement, including any fees arising under or referenced in Section 6 of this Amendment and any costs and expenses payable under Section 7(g) of this Amendment (iincluding the Administrative Agent's Attorney Costs, to the extent invoiced on or prior to the date hereof). Fifth Amendment and Waiver (3-Year)
(4) a certificate of each The Administrative Agent shall have received from the Borrower, dated in form and substance satisfactory to the Amendment No. 1 Effective Date and executed Administrative Agent, copies of the resolutions passed by its the board of directors of the Borrower, certified as of the date hereof by the Secretary or an Assistant SecretarySecretary of the Borrower, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures together with such incumbency certificates and/or other certificates of Responsible Officers of the Financial Officers Borrower, as the Administrative Agent may require to establish the identities of and any other officers verify the authority and capacity of such Borrower each Responsible Officer thereof authorized to sign act as such in connection with this AmendmentAmendment and each other Loan Document to which the Borrower is a party.
(5) The Administrative Agent shall have received all other documents it or the Required Lenders may reasonably request relating to any matters relevant hereto, all in form and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered substance satisfactory to the Administrative Agent Agent.
(6) The Effective Date shall have occurred on or before August 31, 2003.
(b) For purposes of determining compliance with the Second Amendment Effective Dateconditions specified in Section 5(a), and (ii) a certificate of compliance/status/good standingeach Lender that has executed this Amendment shall be deemed to have consented to, as applicableapproved or accepted, or to be satisfied with, each document or other matter either sent, or made available for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested inspection, by the Administrative Agent at least five to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(5c) Business Days prior to From and after the Amendment No. 1 Effective Date;, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(ed) The Administrative Agent will notify the Borrowers shall pay all reasonable Borrower and documented out-of-pocket expenses the Lenders of the Administrative Agent incurred in connection with occurrence of the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. This Amendment and The effectiveness of the amendment and restatement of the Existing Credit Agreement as set forth in pursuant to Section 1 hereof shall become effective as of the first date this Agreement (such date being referred to as the “Amendment No. 1 Restatement Effective Date”) when each shall be subject to the satisfaction of the following conditions precedent:
(a) The Arrangers or their counsel shall have received from each of the Borrower, the Guarantors, the Required Lenders, the Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the Revolving Commitments, the Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the Outstanding Amount of the Existing Term Loan A, the New Term Loan A Lenders and the New Term Loan B Lenders, either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Arrangers (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) Receipt by the Administrative Agent of opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, dated as of the date hereof, and in form and substance satisfactory to the Administrative Agent.
(c) As of the date hereof, (i) there shall not have occurred a Borrower Material Adverse Effect since December 31, 2009 and (ii) there shall not have been satisfiedany Target Material Adverse Effect and no event shall have occurred or circumstance exist that would reasonably be expected to result in a Target Material Adverse Effect.
(d) Receipt by the Administrative Agent of the following, in form and substance satisfactory to the Administrative Agent:
(i) copies of the Borrowers shall have executed Organization Documents of each Loan Party certified to be true and delivered counterparts complete by the appropriate Governmental Authority of this Amendment the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Administrative Agent, date hereof;
(ii) the Required Lenders shall have executed and delivered counterparts such certificates of this Amendment to resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation, the state of its principal place of business and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(e) On or prior to the date hereof, the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent Arrangers shall have received all invoiced expenses required to be paid on or prior to the date hereof.
(if) a certificate On or prior to the date hereof, the Borrower shall have paid all reasonable fees, charges and disbursements of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered counsel to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably directly to such counsel if requested by the Administrative Agent at least five (5and the Arrangers) Business Days to the extent invoiced prior to or on the Amendment No. 1 Effective Date;date hereof.
(eg) the Borrowers shall pay all reasonable and documented out-of-pocket expenses The satisfaction of the Administrative Agent incurred conditions precedent set forth in connection with Section 5.01 of the preparationRestated Credit Agreement. Notwithstanding the foregoing, execution if the Restatement Effective Date has not occurred prior to 4:00 p.m., New York time, on January 31, 2011, this Agreement shall be null and delivery void, the obligations of this Amendment the New Term Loan A Lenders and New Term Loan B Lenders to make Loans shall not become effective and the other instruments Existing Credit Agreement shall continue in full force and documents to be delivered hereunder, effect as if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1this Agreement had never been entered into.
Appears in 1 contract
Conditions of Effectiveness. 2.1 This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date hereof (such date being referred to as the “Second Amendment No. 1 Effective Date”) when when, and only when, each of the following conditions precedent shall have been satisfied:
(ia) the Borrowers The Administrative Agent shall have received a counterpart of this Amendment executed and delivered counterparts of this Amendment to by the Administrative AgentBorrowers, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Required Lenders.
(b) The Administrative Agent shall have received the ▇▇▇▇▇▇ Guaranty executed a counterpart of this Amendment;by ▇▇▇▇▇▇.
(bc) the The representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be Article V of the Existing Credit Agreement and in the other Loan Documents and the representations of ▇▇▇▇▇▇ in the ▇▇▇▇▇▇ Guaranty are true and correct in all material respects on and as of the Second Amendment No. 1 Effective Date; provided that , with the same effect as though made on such date (unless stated to the extent that such representations and warranties specifically refer relate solely to an earlier date, they in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;.
(d) No Default has occurred and is continuing or will result from the execution and delivery or effectiveness of this Amendment.
(e) The Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges Secretary of ▇▇▇▇▇▇ as to the Organization Documents, resolutions or other action and incumbency as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of its Responsible Officer thereof authorized to act as a Responsible Officer in connection with the ▇▇▇▇▇▇ & ▇Guaranty and evidencing that ▇▇▇▇▇▇ is duly organized or formed, validly existing, in good standing (to the extent such concept is applicable) and qualified to engage in business in the jurisdiction in which it is organized; and (ii) a favorable opinion from McGuireWoods LLP, counsel to ▇▇▇▇▇▇ in New York and Virginia, addressed to the Administrative Agent); and, the Fronting Bank and each Lender and in form and substance reasonably acceptable to the Administrative Agent.
(f) The Borrowers shall have paid (i) all fees owing to the Borrower shall pay Lenders as agreed between the Borrowers and the Lenders and (ii) all expenses then due and owing under the Loan Documents (including any reasonable legal fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable related out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required extent invoiced prior to be paid on the Amendment No. 1date of the effectiveness hereof).
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 4 Effective Date”, which date is March 12, 2015) when each of the following conditions shall have been satisfied:
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance counterparts of this Amendment, duly executed and delivered by (Bi) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this AmendmentBorrower, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standingHoldings, as applicable(iii) the MLP, for each Borrower from its jurisdiction of organization (iv) Consenting Lenders constituting the Required Lenders and each other jurisdiction in which it carries on business as may be reasonably requested by (v) the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;Agent.
(eb) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the The Administrative Agent incurred in connection with the preparationshall have received, execution and delivery on behalf of this Amendment itself and the other instruments and documents to be delivered hereunderLenders, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 4 Effective Date and addressed to the Administrative Agent and each of the Lenders, in form and substance reasonably satisfactory to the Administrative Agent); and.
(c) The Administrative Agent shall have received (i) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the Amendment No. 4 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 2(e) and (f) the Borrower shall pay of this Amendment.
(d) Payment of all reasonable fees and expenses due to the Administrative Agent and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Arranger”) (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower).
(e) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 1 Arranger 4 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) No Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) The Administrative Agent shall have received from the Borrower a consent fee payable for the account of each Consenting Lender in an amount equal to 0.75% of the aggregate principal amount of Term Loans held by such Consenting Lender as of the Amendment No. 4 Effective Date.
(h) With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each applicable Credit Party) together with a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 9.03 of the Credit Agreement (including, without limitation, fees flood insurance policies) and reasonable outthe applicable provisions of the Security Documents, each of which (i) shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), (ii) shall name the Collateral Agent, on behalf of the Guaranteed Creditors, as additional insured, (iii) in the case of flood insurance, shall (a) identify the addresses of each property located in a special flood hazard, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-of-pocket expenses of counsel renewal if permitted by applicable law and (iv) shall be otherwise in form and substance satisfactory to the Amendment No. 1 ArrangerAdministrative Agent; provided that the Administrative Agent acknowledges that the requirements of this clause (i) required to be paid were satisfied on the Amendment No. 1March 12, 2015.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of on the first date hereof (such date being referred to as the “Amendment No. 1 3 Effective Date”) when each upon the satisfaction of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers The Administrative Agent shall have received counterparts to this Amendment, duly executed and delivered counterparts by each of this Amendment to the Borrower, the Lenders, the Administrative Agent, the Issuing Bank and the Swingline Lender;
(iib) the Required Lenders The Administrative Agent shall have executed and delivered counterparts of this Amendment received favorable written opinions (addressed to the Administrative Agent and (iii) the Administrative Agent Lenders and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of dated the Amendment No. 1 3 Effective Date; provided that ) of (i) Sidley Austin LLP, counsel for the Loan Parties, and (ii) in-house legal counsel for the Loan Parties, in each case, covering such matters relating to the extent that such representations Loan Parties and warranties specifically refer to an earlier date, they this Amendment as the Administrative Agent shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)reasonably request;
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default The Administrative Agent shall have occurred received certificates of the secretary or an assistant secretary of each Loan Party (or, if any Loan Party does not have a secretary or assistant secretary, any other Person duly authorized to execute such a certificate on behalf of such Loan Party), certifying as to (i) specimen signatures of the persons authorized to execute Loan Documents to which such Loan Party is a party, (ii) copies of resolutions of the board of directors or other appropriate governing body of such Loan Party authorizing the execution and be continuingdelivery of this Amendment and (iii) copies of such Loan Party’s constituent organizational documents;
(d) the The Administrative Agent shall have received (i) received, for each Loan Party, a certificate of each Borrower, dated good standing (or the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (Aequivalent) certify from the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers appropriate governing agency of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the Loan Party’s jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the extent the concept of good standing is applicable in such jurisdiction);
(e) The Administrative Agent on the Second Amendment Effective Date)shall have received, and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) three Business Days prior to the Amendment No. 1 3 Effective Date;
(e) , all documentation and other information regarding the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expensesPatriot Act, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges extent requested in writing of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel the Borrower at least 10 Business Days prior to the Administrative Agent)Amendment No. 3 Effective Date; and
(f) The Administrative Agent shall have received payment of the Borrower shall pay all reasonable fees Administrative Agent’s and expenses due to the Amendment No. 1 Arranger (including, without limitation, its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) in connection with this Amendment and any other Loan Document, and for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 1 Arranger3 Effective Date, in each case, to the extent payment is required by Section 9.03(a) required to be paid on of the Amendment No. 1Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as when (i) the Administrative Agent shall have received counterparts of this Agreement executed by the first date Borrower and all Lenders party hereto, (such date being referred ii) the Administrative Agent shall have received the fees provided to as be paid pursuant to the “Amendment No. 1 Effective Date”Fee Letter and (iii) when the Administrative Agent shall have received each of the following items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance satisfactory to the Administrative Agent, to be fully and properly executed by all parties thereto and the conditions specified below shall have been satisfied:
(ia) A Revolving Loan Note payable to the Borrowers order of each Lender that shall have requested a Revolving Loan Note in accordance with this Agreement and the Swing Line Note payable to the Swing Line Bank.
(b) From each Material Subsidiary, including any Subsidiary that has a Net Worth of less than $10,000,000 but is required to be a Guarantor hereunder by reason of the proviso contained in the definition of “Material Subsidiary” (except the Excluded Subsidiaries), a Guaranty executed and delivered counterparts as of this Amendment the Closing Date.
(c) The favorable written opinions addressed to the Lenders, and in form and substance satisfactory to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received from (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇, LLP (counsel to the Borrower), with respect to the Borrower and (ii) Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP, LLP or any other firm reasonably satisfactory to the Administrative Agent (as counsel for such other Loan Parties as the Administrative Agent may require) which opinions shall be reasonably satisfactory to the Administrative Agent. The Borrower hereby instructs such counsel to prepare their opinions and deliver such opinions to the Lenders for the benefit of the Lenders, and such opinions shall contain a statement to such effect.
(d) The following supporting documents with respect to the Borrower and (to the extent required by Administrative Agent in its sole discretion) each other Loan Party: (i) a copy of its certificate or articles of incorporation or formation or certificate of limited partnership (as applicable) certified as of a date reasonably close to the Closing Date to be a true and accurate copy by the Secretary of State of its state of incorporation or formation; (ii) a certificate of that Secretary of State, dated as of a date reasonably close to the Closing Date, as to its existence and (if available) good standing; (iii) a certificate of the Secretary of State of each jurisdiction, other than its state of incorporation, in which it does business, as to its qualification as a foreign corporation; (iv) a copy of its by-laws, partnership agreement or operating agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its by-laws, partnership agreement or operating agreement (as applicable) in effect on the Closing Date; and(v) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Agreement; (vi) a copy of resolutions of its Board of Directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such Board of Directors, or other appropriate resolutions or consents of, its partners or members certified by its general partner or manager (as applicable) to be true and correct copies thereof duly adopted, approved or otherwise delivered by its partners or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the Closing Date, authorizing the execution and delivery by it of this Agreement and any Notes, Guaranties and other Loan Documents delivered on the Closing Date to which it is a party and the performance by it of all its obligations thereunder; and (vii) such additional supporting documents and other information with respect to its operations and affairs as the Administrative Agent may reasonably request.
(e) Certificates signed by a duly authorized officer of the Borrower stating that: (i) the representations and warranties of the Borrower contained in Article IV hereof are correct and accurate on and as of the Closing Date as though made on and as of the Closing Date and (ii) no event has occurred and is continuing which constitutes an Event of Default or Unmatured Default hereunder.
(f) The certified financial statements provided for in Section 6.04(b) hereof for the Borrower shall pay quarter ending May 31, 2006.
(g) The certified report provided for in Section 6.04(i) hereof for the quarter ending May 31, 2006.
(h) An Affidavit confirming the execution and delivery of this Agreement and the Notes outside the State of Florida.
(i) Evidence of payment in full of all reasonable fees and expenses due to amounts outstanding under the Amendment No. 1 Arranger Existing Credit Agreement.
(including, without limitation, fees and reasonable out-of-pocket expenses of j) Such other documents as the Administrative Agent or its counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of on the first date hereof (such date being referred to as the “Amendment No. 1 2 Effective Date”) when each upon the satisfaction of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers The Administrative Agent shall have received counterparts to this Amendment, duly executed by each of the Borrower, the Lenders and delivered counterparts of this Amendment to the Administrative Agent, ;
(iib) the Required Lenders The Administrative Agent shall have executed and delivered counterparts of this Amendment received favorable written opinions (addressed to the Administrative Agent and (iii) the Administrative Agent Lenders and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of dated the Amendment No. 1 2 Effective Date; provided that ) of (i) Sidley Austin LLP, counsel for the Loan Parties, and (ii) in-house legal counsel for the Loan Parties, in each case, covering such matters relating to the extent that such representations Loan Parties and warranties specifically refer to an earlier date, they this Amendment as the Administrative Agent shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)reasonably request;
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default The Administrative Agent shall have occurred received certificates of the secretary or an assistant secretary of each Loan Party (or, if any Loan Party does not have a secretary or assistant secretary, any other Person duly authorized to execute such a certificate on behalf of such Loan Party), certifying as to (i) specimen signatures of the persons authorized to execute Loan Documents to which such Loan Party is a party, (ii) copies of resolutions of the board of directors or other appropriate governing body of such Loan Party authorizing the execution and be continuingdelivery of this Amendment and (iii) copies of such Loan Party’s constituent organizational documents or a statement that such constituent organizational documents have not changed since the time each Loan Party last provided a certification in respect thereof;
(d) the The Administrative Agent shall have received (i) received, for each Loan Party, a certificate of each Borrower, dated good standing (or the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (Aequivalent) certify from the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers appropriate governing agency of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the Loan Party’s jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the extent the concept of good standing is applicable in such jurisdiction);
(e) The Administrative Agent on the Second Amendment Effective Date)shall have received, and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) three Business Days prior to the Amendment No. 1 2 Effective Date;
(e) , all documentation and other information regarding the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expensesPatriot Act, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges extent requested in writing of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel the Borrower at least 10 Business Days prior to the Administrative Agent)Amendment No. 2 Effective Date; and
(f) The Administrative Agent shall have received payment of the Borrower shall pay all reasonable fees Administrative Agent’s and expenses due to the Amendment No. 1 Arranger (including, without limitation, its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) in connection with this Amendment and any other Loan Document, and for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 1 Arranger2 Effective Date, in each case, to the extent payment is required by Section 9.03(a) required to be paid on of the Amendment No. 1Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Section 2 of this Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective effective, as of February 27, 2017, upon the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions shall have been satisfiedconditions:
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, The execution and delivery of this Amendment by the Borrower, the Administrative Agent and Required Lenders.
(b) There shall not have occurred a material adverse change (a) in the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Guarantor, the Borrower or their Subsidiaries, taken as a whole, since December 31, 2016, (b) the ability of the Borrower or the Guarantor to perform its Obligations under the Loan Documents, (c) the legality, validity, binding effect or enforceability against the Borrower or Guarantor of the Loan Documents (collectively, a “Material Adverse Effect”), or (d) in the facts and information regarding the Borrower and Guarantor as represented to date. sf-3741984 v8
(c) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower or the Guarantor, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent shall have received certificates of Responsible Officer of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other instruments Loan Documents to which such Loan Party is a party.
(e) The Borrower shall have provided the Administrative Agent with executed copies of amendments, under (i) the ABN Revolving Credit Facility and documents to be delivered hereunder, if any (but limitedii) the Union Bank Term Loan Facility, in each case on terms equivalent to this Amendment, and (iii) the case Indenture, dated as of legal fees May 1, 2012 between Textainer Marine Containers II Limited and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇W▇▇▇▇ ▇▇Fargo Bank, National Association, as indenture trustee and (iv) the Indenture dated as of August 5, 2013, between Textainer Marine Containers IV Limited and W▇▇▇▇ & ▇▇▇▇▇▇▇ LLPFargo Bank, counsel National Association, as indenture trustee, in each case on terms satisfactory to the Administrative Agent); andAgent in its reasonable discretion, and all of items (i) through (iv) certified as complete and correct and in full force and effect, except to the extent conditioned on the simultaneous effectiveness of this Amendment.
(f) the The Borrower shall pay all reasonable fees have provided to the Administrative Agent a Borrowing Base Certificate as of each of December 31, 2016 and expenses due to the Amendment No. 1 Arranger 6 Effective Date for each of the Credit Agreement, the Union Bank Term Loan and the ABN Revolving Loan, with such reports as of December 31, 2016 for each of the Credit Agreement, the Union Bank Term Loan and the ABN Revolving Loan to include detail as to the characteristics of collateral of the type referred to in Section 9.10(b)(ii) of the Credit Agreement, and (iii) such other financial statements and reports as may be requested, all to the satisfaction of the Administrative Agent.
(g) The Borrower shall have paid or caused to be paid to the Administrative Agent all fees as described in the fee letter between the Administrative Agent and the Borrower, including, without limitation, fees a fee for the account of each Lender who executes and reasonable out-of-pocket expenses delivers this Amendment no later than 5:00 p.m. eastern time on February 24, 2017, an amendment fee equal to 25 basis points of counsel the respective Commitment of such Lender.
(h) The Borrower shall have paid all amounts described in Section 8(b) hereof that have been invoiced prior to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1date hereof.
Appears in 1 contract
Conditions of Effectiveness. 2.1 This First Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “First Amendment No. 1 Effective Date”) when when, and only when, each of the following conditions precedent shall have been satisfied:
(ia) the Borrowers The Administrative Agent shall have received an executed and delivered counterparts counterpart of this First Amendment from each of the Borrower and the Lenders under the Credit Agreement.
(b) The Administrative Agent shall have received in form and substance reasonably satisfactory to the Administrative Agent, :
(iii) a certificate from the Required Lenders shall have executed and delivered counterparts chief financial officer of this Amendment the Borrower to the Administrative Agent and effect that (iiii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the all representations and warranties of the Borrowers (x) Borrower contained in Section 3 hereof shall be true the Credit Agreement and the other Loan Documents are true, correct and complete in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects) on and as of the First Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this AmendmentFirst Amendment and (ii) as of the First Amendment Effective Date, no Default or Event of Default shall have has occurred and be continuingis continuing or will occur after giving effect to this First Amendment;
(d) the Administrative Agent shall have received (iii) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant SecretarySecretary of the Borrower certifying as to the incumbency and genuineness of the signature of each officer of the Borrower executing Loan Documents to which it is a party and certifying that attached thereto is a true, which shall correct and complete copy of (A) certify the articles or certificate of incorporation of the Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation, (B) the bylaws of the Borrower as in effect on the First Amendment Effective Date, (C) resolutions duly adopted by the board of its Board directors (or other governing body) of Directors the Borrower authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment, (B) identify by name Agreement and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized Loan Documents to sign this Amendmentwhich it is a party, and (CD) contain appropriate attachments, including the each certificate or articles of incorporation or organization of such Borrower certified by the relevant authority required to be delivered pursuant to Section 2.1(b)(iii) required to be satisfied as of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second First Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(eiii) certificates as of a recent date of the Borrowers good standing of the Borrower under the laws of its jurisdiction of incorporation, and, to the extent requested by the Administrative Agent, each other jurisdiction where the Borrower is qualified to do business; and
(iv) at least five days before the First Amendment Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall pay all have delivered a Beneficial Ownership Certification in relation to the Borrower.
(c) The Borrower shall have paid the reasonable fees and documented out-of-pocket expenses of the Administrative Agent (including reasonable and documented fees and out-of-pocket expenses of counsel) incurred in connection with the preparation, negotiation, execution and delivery of this First Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel extent invoiced prior to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1date hereof.
Appears in 1 contract
Conditions of Effectiveness. This (a) The effectiveness of Sections 2 and 3 of this Amendment and shall be subject to the amendment satisfaction of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions precedent:
(1) The Agent shall have received from each Loan Party and the Majority Lenders a duly executed original (or, if elected by the Agent, an executed facsimile copy) of this Amendment.
(2) The Agent shall have received the consent of each Guarantor in its capacity as such to the execution and delivery hereof by the Company.
(3) The Agent shall have received evidence of payment by the Company of all fees, costs and expenses due and payable as of the Effective Date hereunder and under the Credit Agreement, including any fees arising under or referenced in Section 6 of this Amendment and any costs and expenses payable under Section 7(g) of this Amendment (including the Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(4) The Agent shall have received from the Company an Update Certificate (as to each Loan Party), substantially in the form of Exhibit H to the Credit Agreement, dated the Effective Date and otherwise in form and substance satisfactory to the Agent, covering the period from the last day of the "Reporting Period" covered by the most recent Update Certificate furnished to the Agent and the Lenders pursuant to subsection 6.01(f) of the Credit Agreement through the Effective Date.
(5) The Agent shall have received evidence satisfactory to it that all actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been satisfied:
taken, including, without limitation, (i) the Borrowers shall have executed and delivered counterparts Agent's receipt of this Amendment acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Agent for the benefit of the Lenders, or other evidence satisfactory to the Administrative AgentAgent that there has been filed, registered or recorded (or arrangements made with a reputable filing service to file, register or record) all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law, (ii) the Required Lenders Agent's receipt of written advice relating to such Lien and judgment searches as the Agent shall have executed requested, and delivered counterparts such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of this Amendment to the Administrative Agent any Persons (other than Permitted Liens), and (iii) the Administrative Agent's receipt of all certificates and instruments representing the Pledged Shares, together with stock transfer powers executed in blank as the Agent and or the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;Lenders may specify.
(b6) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative The Agent shall have received (i) from each of the Company and Holdings a certificate copy of each Borrowerthe resolutions passed by the board of directors of such Person, dated certified as of the Amendment No. 1 Effective Date and executed by its the Secretary or an Assistant SecretarySecretary of such Person, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any Credit Agreement (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agentas amended by this Amendment); and.
(f7) the Borrower The Agent shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses have received an opinion of counsel to the Company and addressed to the Agent and the Lenders, dated the Effective Date, in form and substance satisfactory to the Agent.
(8) The Agent shall have received all other documents it or any Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Agent and each Lender.
(9) The representations and warranties in Section 4 of this Amendment No. 1 Arrangershall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(b) required For purposes of determining compliance with the conditions specified in subsection 5(a) above, each Lender that has executed this Amendment shall be deemed to have consented to, approved or accepted, or to be paid on satisfied with, each document or other matter either sent, or made available for inspection, by the Amendment NoAgent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender.
(c) From and after the Effective Date, the Credit Agreement is amended as set forth herein. 1Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(d) The Agent will notify the Company and the Lenders of the occurrence of the Effective Date. 7. 8
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment The effectiveness of the Credit this Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred is subject to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall have been satisfiedbe originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment Agreement executed by the Administrative Agent, each Lender and each Loan Party;
(ii) each Note executed by the Borrowers in favor of each Lender requesting a Note or Notes;
(iii) the Security Agreement executed by each Loan Party,
(iv) financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect the Liens and security interests created or purported to be created under the Security Agreement, covering the Collateral described therein;
(v) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any property of any Loan Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Agreements (other than Permitted Liens);
(vi) the Perfection Certificate, executed by each Loan Party;
(vii) a certificate of each Loan Party, dated as of the Closing Date and executed by a secretary, assistant secretary or other senior officer (as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its shareholders, partners, managers, members, board of directors, board of managers or other governing body authorizing the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a party on the Closing Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement and (y) that such documents or agreements have not been amended, restated, amended and restated, supplemented or otherwise modified (except as otherwise attached to such certificate and certified therein as being the only amendments, restatements, amendments and restatements, supplements or modifications thereto as of such date) and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from (A) its jurisdiction of organization and (B) in each jurisdiction in which it is qualified to engage in business where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except, in the case of this clause (B), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a certificate of a duly authorized officer of each Loan Party either (A) stating that all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party have been received and are in full force and effect or (B) stating that no such consents, licenses or approvals are so required in connection with the consummation by such Loan Party of the Transactions;
(ix) a certificate signed by a Responsible Officer of Holdings certifying that the conditions set forth in Section 4.01(f), (g), (h) and (i) have been satisfied as of such date;
(x) a solvency certificate, substantially in the form of Exhibit L from a Responsible Officer of Holdings (or, at the option of Holdings, a customary third-party opinion as to the solvency of Holdings and its Subsidiaries, on a consolidated basis);
(xi) a Borrowing Base Certificate covering the Borrowing Base as of the Closing Date, with customary supporting documentation;
(xii) certificates of insurance evidencing that the Administrative Agent, for the benefit of the Secured Parties, shall be named as an additional insured, assignee, mortgagee and/or loss payee, as appropriate, with respect to all applicable insurance coverage and policies of the Loan Parties; and
(xiii) the executed opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment the L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;may reasonably request.
(b) (i) Any fees required to be paid on or before the Closing Date to the Administrative Agent, any Arranger or the Lenders pursuant to the Fee Letters shall have been paid and (ii) any costs and expenses required to be paid on or before the Closing Date to the Administrative Agent, any Arranger or the Lenders to the extent invoices have been received by Holdings at least two Business Days prior to the Closing Date (or such later date as reasonably agreed by Holdings) shall have been paid.
(c) [Reserved].
(d) On or prior to the Closing Date, the Acquisition shall have been consummated pursuant to the Acquisition Agreement (without giving effect to any amendments, waivers, modifications or consents that are materially adverse to the interests of the Lenders or the Arrangers, without the consent of the Arrangers).
(e) On or prior to the Closing Date, the Initial Rights Offering shall have been consummated pursuant to the Equity Commitment Letter (without giving effect to any amendments, waivers, modifications or consents that are materially adverse to the interests of the Lenders or the Arrangers, without the consent of the Arrangers), and Holdings shall have received the proceeds of such Initial Rights Offering in an aggregate amount not less than the Minimum Rights Offering Amount.
(f) On the Closing Date, neither Holdings nor any of its Subsidiaries shall have any material Indebtedness for borrowed money (other than any Loans made and Letters of Credit issued on the Closing Date), purchase money Indebtedness, Capital Lease Obligations, working capital facilities for Foreign Subsidiaries, other Indebtedness incurred in the ordinary course of business, and other Indebtedness permitted pursuant to Section 7.02.
(g) Since November 5, 2015, no Company Material Adverse Effect shall have occurred.
(h) The representations and warranties of the Borrowers (x) each Loan Party and its Subsidiaries contained in Section 3 hereof this Agreement and each other Loan Document, shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the Amendment No. 1 Effective Closing Date; provided that , except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);.
(ci) prior to and immediately after giving effect to this Amendment, no No Default or Event of Default shall have occurred and be continuing;, or would result from, the consummation of the Transactions (including any Credit Extension to be made on the Closing Date and the application of the proceeds thereof).
(dj) the The Administrative Agent shall have received (i) any certificates representing the Equity Interests required to be pledged pursuant to the Security Agreement, together with an undated stock or similar power for each such certificate executed in blank by a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures duly authorized officer of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, pledgor thereof and (Cii) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes any promissory note required to such documents since those that were delivered be pledged to the Administrative Agent on pursuant to the Second Amendment Effective Date), and Security Agreement endorsed (iiwithout recourse) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(k) Each document (including any UCC (or similar) financing statements) required by the Collateral Documents or under Law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to perfect such Lien shall be in proper form for filing, registration or recordation.
(l) The Administrative Agent shall have received, at least five (5) 3 Business Days prior to the Amendment No. 1 Effective Closing Date;
(e) , all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Borrowers shall pay all reasonable and documented out-of-pocket expenses of PATRIOT Act, to the extent requested by the Administrative Agent incurred in connection or any Lender at least 10 Business Days prior to the Closing Date. For purposes of determining compliance with the preparationconditions specified in this Section 4.01, execution and delivery of each Lender that has signed this Amendment and the other instruments and documents Agreement shall be deemed to have consented to, approved or accepted or to be delivered hereundersatisfied with, if each document or other matter required under any (but limitedLoan Document to be consented to or approved by or acceptable or satisfactory to such Lender, in unless the case of legal fees and expenses, Administrative Agent shall have received written notice from such Lender prior to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Warrior Met Coal, LLC)
Conditions of Effectiveness. This Amendment The obligations of Administrative Agent and the amendment of Lenders to amend the Credit Agreement as set forth provided herein are subject to the fulfillment or waiver in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each writing of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers Borrower, Parent and each Lender shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have multiple duly executed a counterpart counterparts of this Amendment;
(b) the representations Borrower shall have delivered to Administrative Agent a fully executed and warranties effective copy of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Fifth Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the First Lien Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)Agreement;
(c) prior Borrower shall have delivered to Administrative Agent evidence, reasonably satisfactory to Administrative Agent, that the Mortgaged Properties represent at least 90% of the total value of the Proved Oil and immediately Gas Properties evaluated in the most recently completed Reserve Report after giving effect to exploration and production activities, acquisitions, dispositions and production;
(d) Administrative Agent shall have received a fully executed and effective copy of the Consent to Intercreditor Agreement dated as of even date herewith, executed by and among Administrative Agent and the First Lien Agent in form and substance reasonably satisfactory to Administrative Agent;
(e) Borrower shall have paid to Administrative Agent, for the account of each Lender party hereto, the fee described in Section 3.06(a) of the Credit Agreement and Administrative Agent shall have received all other fees, expenses and other amounts due and owing to Administrative Agent and the Lenders, including, without limitation, the amounts described more fully in Section 7 hereof;
(f) no Material Adverse Effect shall have occurred; and
(g) except to the extent waived by this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1occurred.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof Joinder shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of on which the following conditions shall have been satisfied:satisfied (or waived):
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency The Administrative Agent shall have executed a counterpart received counterparts of this Amendment;Joinder executed by the Borrower and the 2017 Incremental Term B Facility Lenders.
(b) After giving effect to this Joinder and the transactions contemplated hereby (i) each of the representations and warranties of made by any Loan Party in or pursuant to the Borrowers (x) contained in Section 3 hereof Loan Documents shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that Date as if made on and as of such date (except to the extent that such representations and warranties specifically refer to an earlier made as of a specific date, they in which case such representation and warranty shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date such specific date), (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(cii) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;continuing or would result from the borrowings to be made on the Effective Date.
(dc) the The Administrative Agent shall have received a legal opinion of O’Melveny & Myer▇ ▇▇▇, counsel to the Loan Parties, addressed to the Administrative Agent and the 2017 Incremental Term B Facility Lenders and reasonably satisfactory to the Administrative Agent.
(id) The Administrative Agent shall have received a certificate of each Borrower, dated the Amendment No. 1 Effective Date Borrower substantially in the form of Exhibit F to the Credit Agreement (with such modifications as necessary to make such certificate applicable to the transactions contemplated pursuant to this Joinder) with appropriate insertions and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, attachments including the certificate or articles of incorporation or organization of such the Borrower certified by the relevant authority of the jurisdiction of organization of such the Borrower.
(e) The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of the Borrower and a true and correct copy confirming compliance with the conditions precedent set forth in clause (b) of its bylaws this Section 4.
(or a confirmation that there f) The Borrower shall have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and a notice of borrowing (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may notice must be reasonably requested received by the Administrative Agent at least five (5) Business Days prior to 12:00 Noon, New York City time, on the Amendment No. 1 Effective Date;) requesting that the Incremental Term B Facility Lenders make the 2017 Incremental Term B Loans on the Effective Date and specifying the amount to be borrowed.
(eg) the Borrowers The Borrower shall pay have paid all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent incurred in connection with this Joinder (including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Shearman & ▇▇▇▇▇▇▇ LLP, Sterling LLP as counsel to the Administrative Agent); and
(fAgents) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger extent invoiced one (including, without limitation, fees and reasonable out-of-pocket expenses of counsel 1) Business Day prior to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Effective Date.
Appears in 1 contract
Sources: Increase Term Joinder to Credit Agreement (Microsemi Corp)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become be effective as of September 24, 1999, so long as all corporate actions of Borrower and the first date (such date being referred Significant Subsidiaries taken in connection herewith and the transactions contemplated hereby shall be satisfactory in form and substance to as the “Amendment No. 1 Effective Date”) when Administrative Agent and Lenders, and each of the following conditions precedent shall have been satisfied:
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all All reasonable and documented out-of-pocket fees and expenses of the Administrative Agent incurred in connection with the preparationLoan Documents, execution and delivery of including this Amendment and the Additional Security Documents, including legal and other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal professional fees and expenses, expenses incurred on or prior to the actual reasonable date of this Amendment by Administrative Agent or any Lender, including, without limitation, the fees and documented out- of-pocket fees, disbursements and other charges expenses of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C. and ▇▇▇▇▇▇ LLP▇▇▇▇▇▇▇▇ L.L.P., shall have been paid.
(b) Administrative Agent and each Lender shall have received each of the following, in form and substance satisfactory to Administrative Agent, Lenders and Administrative Agent's counsel:
(i) an opinion of PricewaterhouseCoopers, accountants for the Borrower and its Subsidiaries, with respect to the fiscal year 1999 audited consolidated financial statements of the Borrower, which shall not be limited as to the scope of the audit or qualified as to the status of the Borrower and its Subsidiaries as a going concern;
(ii) a certificate of the Borrower certifying (A) as to the accuracy in all material respects, after giving effect to this Amendment, the Additional Security Documents, and the Waiver in Section 1 hereof, of the representations and warranties set forth in the Credit Agreement, this Amendment, the Additional Security Documents, and the other Loan Documents, and (B) that there exists no Default or Event of Default, after giving effect to this Amendment and the Waiver in Section 1 hereof, and the execution, delivery and performance of this Amendment and the Additional Security Documents will not cause a Default or Event of Default;
(iii) certified copies of resolutions of the boards of directors of the Borrower and each Significant Subsidiary authorizing the transactions contemplated by this Amendment and the Additional Security Documents;
(iv) the Borrower Security Agreement, the Subsidiary Security Agreement, the Aircraft Security Agreement, the Financing Statements, and any and all Collateral Requirements in connection with any of the foregoing (other than as set forth in Section 12 below);
(v) payment of the Amendment Fee;
(vi) an opinion of counsel to the Borrower and each Subsidiary addressed to the Lenders and in form and substance satisfactory to the Administrative Agent), dated as of the date hereof, and covering such matters incident to the transactions contemplated by this Amendment and the Additional Security Documents as the Administrative Agent or its counsel may reasonably request; and
(fvii) such other documents, certificates and instruments as the Borrower Administrative Agent shall pay all reasonable fees and expenses due require prior to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1date hereof.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each is subject to the satisfaction of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers The Administrative Agent shall have executed and delivered received counterparts of this Amendment duly executed by the Borrowers, the Required Lenders, each New Lender, each existing Lender increasing its Commitment under the Credit Agreement (each such existing Lender, collectively with each New Lender, being referred to herein collectively as the “New Money Lenders”), the Issuing Bank and the Administrative Agent, .
(iib) the Required Lenders The Administrative Agent shall have executed and delivered counterparts of this Amendment received (i) a favorable written opinion (addressed to the Administrative Agent and (iii) the Administrative Agent Lenders and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of dated the Amendment No. 1 Effective Date; provided that ) of Skadden, Arps, Slate, Meagher, & ▇▇▇▇ LLP, counsel for the Company and (ii) a favorable written opinion (addressed to the extent that such representations Administrative Agent and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of Lenders dated the Amendment No. 1 Effective Date in all material respects with Date) of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel for the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified dateCompany, and that any representation in each case covering such other matters relating to the Company, the Loan Documents or warranty which is subject this Amendment as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsels to any materiality qualifier shall be be true and correct in all respects);deliver such opinions.
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate signed by a Financial Officer of each Borrowerthe Company certifying that, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of after giving effect to this Amendment, the Company is in compliance with the conditions set forth in paragraphs (Ba) identify by name and title and bear the signatures (b) of Section 4.02 of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), Credit Agreement and (ii) a certificate documents consistent with those delivered on the Effective Date of compliance/status/good standing, the Credit Agreement as applicableto the corporate power and authority of the Borrowers to borrow under the Credit Agreement after giving effect to this Amendment.
(d) The Administrative Agent shall have received, for the account of each Borrower from New Money Lender party hereto that delivers its jurisdiction of organization executed signature page to this Amendment by no later than the date and each other jurisdiction in which it carries on business as may be reasonably requested time specified by the Administrative Agent at least five (5) Business Days prior Agent, an upfront fee in an amount equal to the Amendment No. 1 Effective Date;amount previously disclosed to the New Money Lenders.
(e) the Borrowers The Administrative Agent shall pay all reasonable and documented out-of-pocket expenses have received payment of the Administrative Agent incurred in connection with the preparation, execution Agent’s and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel to for the Amendment No. 1 ArrangerAdministrative Agent) required to be paid on the Amendment No. 1in connection with this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Crane Co /De/)
Conditions of Effectiveness. This Amendment The obligations of the 2020 Incremental Term Lenders to make 2020 Incremental Term Loans under the Amended Credit Agreement and the amendment of amendments to the Credit Agreement as set forth contained in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of on which the following conditions shall have been satisfied:satisfied (or waived by the Term Lenders and the 2020 Incremental Term Lenders):
(a) The Administrative Agent shall have received counterparts of (i) the Borrowers shall have executed and delivered counterparts of this Amendment to executed by the Borrower, Holdings, the Administrative Agent, the Term Lenders and the 2020 Incremental Term Lenders and (ii) the Required Lenders shall have Guarantor Consent and Reaffirmation attached hereto (the “Guarantor Consent”) executed and delivered counterparts of this Amendment to the Administrative Agent and by each Guarantor.
(iiib) the Administrative Agent and the Multicurrency The Administrative Agent shall have executed received a counterpart of customary legal opinion from (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties and (ii) each local counsel to the Loan Parties listed on Schedule 5(b) to this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);.
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default The Administrative Agent shall have occurred received, with respect to each Loan Party, certificates of good standing from the secretary of state of the state of organization of each Loan Party (to the extent such concept exists in such jurisdiction), customary certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of each Loan Party certifying true and be continuing;complete copies of the Organizational Documents attached thereto and evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Guarantor Consent.
(d) the The Administrative Agent shall have received (i) a certificate Committed Loan Notice no later than 1:00 p.m., New York time, three (3) Business Days (in the case of Eurodollar Rate Loans) or two (2) Business Days (in the case of Base Rate Loans), in each Borrowercase prior to the requested date of the Borrowing in respect of the 2020 Incremental Term Loans and (ii) an Incremental Loan Request; provided that this Amendment shall be deemed to be the Incremental Loan Request with respect to the 2020 Incremental Term Loans for purposes of the Amended Credit Agreement and all parties hereto hereby agree that this Amendment shall satisfy all requirements under the Amended Credit Agreement for the Incremental Loan Request with respect to the 2020 Incremental Term Loans.
(e) All fees (including fees required to be paid pursuant to the fee letter dated as of the date hereof, dated by and among the Borrower and the 2020 Incremental Term Lenders) and expenses (in the case of expenses, to the extent invoiced at least three (3) Business Days prior to the Amendment No. 1 Effective Date and executed (except as otherwise reasonably agreed by its Secretary the Borrower)) required to be paid under the Credit Agreement on or Assistant Secretaryprior to the Amendment No. 1 Effective Date shall have been paid, which or shall be paid substantially concurrently with the Borrowing of 2020 Incremental Term Loans on the Amendment No. 1 Effective Date.
(Af) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures The Administrative Agent shall have received an unaudited pro forma consolidated balance sheet of the Financial Officers and any other officers Borrower as of such Borrower authorized February 29, 2020, prepared after giving effect to sign this Amendment, and the 2020 Incremental Term Loans.
(Cg) contain appropriate attachments, including The Administrative Agent shall have received at least two (2) Business Days prior to the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws Amendment No. 1 Effective Date (or a confirmation that there have been no changes to such documents since those that were delivered shorter period as may be acceptable to the Administrative Agent on Agent) all documentation and other information in respect of the Second Amendment Effective Date)Borrower and the Guarantors (including, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect of the Borrower) required under applicable “know your customer” and anti-money laundering rules and regulations (iiincluding the USA PATRIOT Act and Beneficial Ownership Regulations) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be that has been reasonably requested in writing by the Administrative Agent at least five three (53) Business Days prior to the Amendment No. 1 Effective Date;.
(eh) the Borrowers The Administrative Agent shall pay all reasonable and documented out-of-pocket expenses have received a solvency certificate from a Financial Officer of the Administrative Agent incurred in connection with Borrower (after giving effect to the preparation, execution and delivery of this Amendment and the other instruments 2020 Incremental Term Loans) substantially in the form attached as Exhibit I to the Amended Credit Agreement. For purposes of determining compliance with the conditions specified in this Section 4, the Administrative Agent, each Term Lender and documents each 2020 Incremental Term Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be delivered hereundersatisfied with, if any (but limitedeach document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent, a Term Lender or a 2020 Incremental Term Lender, as applicable, unless, in the case of legal fees and expensesa Term Lender or a 2020 Incremental Term Lender, the Administrative Agent shall have received notice from such Term Lender or 2020 Incremental Term Lender prior to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the proposed Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: First Lien Credit Agreement (Convey Holding Parent, Inc.)
Conditions of Effectiveness. This Amendment and the amendment The effectiveness of the Credit this Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred is subject to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall have been satisfiedbe originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Closing Date Term Note executed by the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained Borrower in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate favor of each Borrower, dated the Amendment No. 1 Effective Closing Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and Term Lender requesting a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), Closing Date Term Note and (ii) a certificate Delayed Draw Term Note executed by the Borrower in favor of compliance/status/each Delayed Draw Term Lender requesting a Delayed Draw Term Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing, as applicable, for each Borrower from standing and qualified to engage in business in (A) its jurisdiction of organization and (B) each other jurisdiction in which it carries on where its ownership, lease or operation of properties or the conduct of its business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior requires such qualification, except to the Amendment No. 1 Effective Dateextent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(ev) the Borrowers shall pay all reasonable and documented out-of-pocket expenses a favorable opinion of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of G▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ T▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent); andAgent and each Lender as to such customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(fvi) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower shall pay all reasonable fees certifying (A) that the conditions specified in Sections 4.02(a), (b) and expenses due (d) have been satisfied, (B) that there has been no event or circumstance since December 31, 2022, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the Amendment No. 1 Arranger knowledge of any Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse Effect;
(viii) a Solvency Certificate from the Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Borrower and its Subsidiaries, taken as a whole, are Solvent;
(ix) a duly completed Compliance Certificate, giving pro forma effect to the transactions to occur on or about the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date) (such Compliance Certificate, the “Pro Forma Closing Date Compliance Certificate”);
(x) the financial statements referenced in Section 5.05(a) and (b); and
(xi) such other certificates, documents or consents as the Administrative Agent reasonably may require.
(b) Any fees required hereunder or under the Fee Letter to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and reasonable out-of-pocket expenses disbursements of counsel to the Amendment No. 1 ArrangerAdministrative Agent (directly to such counsel if requested by the Administrative Agent) required to the extent invoiced (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be paid on incurred by it through the Amendment Noclosing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(i) Upon the reasonable request of any Lender made at least (10) days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act and (ii) at least five (5) days prior to the Closing Date, if any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. 1Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Getty Realty Corp /Md/)
Conditions of Effectiveness. This The effectiveness of this Amendment (including the amendments contained in SECTION 1 and agreements contained in SECTION 2) are subject to the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date satisfaction (such date being referred to as the “Amendment No. 1 Effective Date”or written waiver) when each of the following conditions (the date of satisfaction of such conditions being referred to herein as the “Eighth Amendment Effective Date”):
(a) This Amendment shall have been satisfied:
(i) duly executed by the Borrowers shall have executed Borrowers, the Subsidiary Guarantors, each 2024 Refinancing Term Loan B Lender and delivered counterparts of this Amendment to each 2024 Refinancing Revolving Credit Lender, each Issuing Bank, the Administrative Term Loan B Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Revolver Administrative Agent and the Multicurrency Collateral Agent (which may include a copy transmitted by facsimile or other electronic method), and delivered to the Administrative Agent shall have executed a counterpart of this AmendmentAgents;
(b) A Borrowing Request in accordance with Section 2.2 of the Credit Agreement;
(c) The Administrative Agents shall have received favorable legal opinions of (A) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, (B) ▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., Nevada counsel to the Loan Parties, (C) ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Cayman) LLP, Cayman Islands counsel to the Loan Parties, (D) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (London) LLP, English law counsel for the Administrative Agents, (E) ▇▇▇▇▇▇ ▇▇▇▇ AG, Swiss counsel to the Loan Parties with respect to capacity of each Subsidiary Guarantor incorporated in Switzerland to enter into the Loan Documents to which it is a party, (F) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇, Swiss counsel to the Collateral Agent regarding the validity of the confirmation of the Swiss first-ranking quota pledge agreements granted over the quotas of the Subsidiary Guarantors incorporated in Switzerland and (G) DLA Piper Luxembourg S.à ▇.▇., Luxembourg counsel to the Loan Parties with respect to the capacity of the Luxembourg Loan Parties to enter into the Loan Documents and subsistence of security interest, in each case in form and substance reasonably satisfactory to the Administrative Agents;
(d) The Administrative Agents shall have received a certificate signed by a Responsible Officer of the Borrowers as to the matters set forth in paragraphs (g) and (h) of this SECTION 3;
(e) The Administrative Agents shall have received (I) a certificate dated as of the Eighth Amendment Effective Date of the corporate secretary or an assistant or associate corporate secretary or director (or such other officer reasonably acceptable to the Administrative Agents) of each of the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agents, certifying (i) that attached thereto is a true and complete and up to date copy of the articles or certificate of incorporation, memorandum and articles of association or other comparable organizational documents including any certificate on change of name and all amendments thereto of such Loan Party certified (other than in the case of any Loan Party that is a Cayman Islands exempted company or any Loan Parties incorporated in England and Wales) as of a recent date by the secretary of state (or comparable Governmental Authority) of its jurisdiction of organization (where applicable), and that the same has not been amended since the date of such certification, (ii) if applicable, that attached thereto is a true and complete copy of the bylaws or comparable governing documents of such Loan Party, as then in effect and as in effect at all times without amendment of supersession from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors or managers or other comparable governing body or bodies of such Loan Party (and, if applicable all the holders of the issued shares of such Loan Party), (i) authorizing the execution, delivery and performance of this Amendment and any related Loan Documents to which it is a party, (ii) approving the terms of, and the transactions contemplated by, this Amendment any related Loan Documents, and the continuing security interest, or granting of security interest, over Collateral pursuant to the relevant Collateral Documents; (iii) authorizing a specified person or persons to execute this Amendment, any other Loan Document and related documents on its behalf; and (iv) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (if relevant) to be signed and/or dispatched by it under or in connection with this Amendment, any other Loan Document and related documents, which are in full force and effect without amendment or supersession as of the date of the certificate, (iv) as to the incumbency and genuineness of the signature of each officer, director, manager or other comparable authorized manager or attorney of such Loan Party, executing this Amendment or any of such other Loan Documents, and attaching all such copies of the documents described above together with, in the case of the Loan Parties incorporated in the Cayman Islands and HBL Ltd., copies of their internal registers of directors and officers, registers of members (except the register of members of the Parent) and registers of mortgages and charges (except such register of HBL Ltd.), (v) in case of any Loan Party formed, organized or incorporated under the laws of Switzerland, a copy of the minutes of the quotaholder resolutions of each of the such Loan Party duly adopted by the relevant sole quotaholder of such such Loan Party approving the terms of, and the transactions contemplated by, and authorizing the execution, delivery and performance of the Amendment, any Loan Documents and related documents to which it is a party, (vi) in case of any Loan Party formed, organized or incorporated under the laws of Switzerland, a copy of a certified up-to-date excerpt from the commercial register of each such Loan Party and (vii) in case of any Loan Party incorporated under the laws of England and Wales, (A) an up-to-date copy of the PSC Register (within the meaning of section 790C(1) of the Companies Act 2006) and (B) that the borrowing, guaranteeing or security, as appropriate, of the Commitments will not cause any borrowing, guarantee, security or other similar limit binding on it to be exceeded, and (II) in respect of (i) any Luxembourg Loan Party, (ii) WHBL Luxembourg S.à ▇.▇., (iii) HLF Luxembourg Distribution S.à ▇.▇. and (iv) Herbalife Africa (together the “Luxembourg Entities” and each a “Luxembourg Entity”), a manager’s certificate dated as of the Eighth Amendment Effective Date signed by a manager of the relevant Luxembourg Entity, certifying the following items: (A) an up-to-date copy of the articles of association of the relevant Luxembourg Entity; (B) an electronic true and complete certified excerpt of the Luxembourg Companies Register pertaining to the relevant Luxembourg Entity dated as of the date of this Amendment; (C) an electronic true and complete certified certificate of non-registration of judicial decisions or administrative dissolution without liquidation (certificat de non-inscription d’une décision judiciaire ou de dissolution administrative sans liquidation) dated as of the date of this Amendment issued by Luxembourg Insolvency Register (Registre de l’insolvabilité, Reginsol) held and maintained by the Luxembourg Companies Register and reflecting the situation no more than one Business Day prior to the date of this Amendment; (D) a true, complete and up-to-date board resolutions approving the entry by the relevant Luxembourg Loan Party into, among others, the Loan Documents; (E) the relevant Luxembourg Entity is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), voluntary or judicial liquidation (liquidation volontaire ou judiciaire), reprieve from payment (sursis de paiement), general settlement with creditors, administrative dissolution without liquidation (dissolution administrative sans liquidation), judicial reorganisation by mutual agreement (sursis en vue de la conclusion d’un accord amiable extra-judiciaire), judicial reorganisation by collective agreement (réorganisation judiciaire par accord collectif), judicial reorganisation by transfer of assets or activities (réorganisation judiciaire par transfert sous autorité de justice) or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings; (F) a true and complete specimen of signatures for each of the managers or authorized signatories having executed for and on behalf of the relevant Luxembourg Loan Party the Loan Documents;
(f) The Administrative Agents shall have received a certificate as of a recent date of the good standing of each of the Loan Parties (other than the Luxembourg Loan Parties or any Loan Parties incorporated in England and Wales or any Loan Parties incorporated in Switzerland) under the laws of its jurisdiction of organization, from the secretary of state (or comparable Governmental Authority) of such jurisdiction as well as corresponding bring-down good standing certificates dated as of the Eighth Amendment Effective Date, save that, no such bring-down good standing certificate is required for any Loan Party that is a Cayman Islands exempted company where the above recent date of the certificate of good standing initially provided is no earlier than 10 Business Days prior to the Eighth Amendment Effective Date;
(g) No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(h) The representations and warranties of each Loan Party set forth in SECTION 5(b) of this Amendment are true and correct and the representations and warranties of the Borrowers each Loan Party set forth in SECTIONS 5(a) and (xc) contained in Section 3 hereof shall be of this Amendment are true and correct in all material respects on and as of the Eighth Amendment No. 1 Effective Date; provided that Date (immediately after giving effect to this Amendment) as if made on as of such date, except in the extent that case of any representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, furtherthat, in each case such materiality qualifier shall not be applicable to any representations or warranties that any representation and warranty that is already are qualified as to “materiality,” or modified by materiality or “Material Adverse Effect” or similar language ”;
(i) The Administrative Agents shall be true and correct have received a solvency certificate in all respects on such respective dates and (y) set forth in the form of Exhibit J of the Credit Agreement are true and correct on and as from a Responsible Officer of the Amendment No. 1 Effective Date in all material respects Parent with respect to the same effect as though made on and as solvency of the Amendment No. 1 Effective Date (it being understood Parent and agreed that any representation or warranty which by its terms is made as of Subsidiaries, on a specified date shall be be true and correct in all material respects only as of such specified dateconsolidated basis, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this the Eighth Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of on the first date hereof (such date being referred to as the “Amendment No. 1 2 Effective Date”) when each upon the satisfaction of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers The Administrative Agent shall have received counterparts to this Amendment, duly executed and delivered counterparts by each of this Amendment to the Borrower, the Lenders, the Administrative Agent, the Issuing Bank and the Swingline Lender;
(iib) the Required Lenders The Administrative Agent shall have executed and delivered counterparts of this Amendment received favorable written opinions (addressed to the Administrative Agent and (iii) the Administrative Agent Lenders and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of dated the Amendment No. 1 2 Effective Date; provided that ) of (i) Sidley Austin LLP, counsel for the Loan Parties, and (ii) in-house legal counsel for the Loan Parties, in each case, covering such matters relating to the extent that such representations Loan Parties and warranties specifically refer to an earlier date, they this Amendment as the Administrative Agent shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)reasonably request;
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received certificates of the secretary or an assistant secretary of each Loan Party (or, if any Loan Party does not have a secretary or assistant secretary, any other Person duly authorized to execute such a certificate on behalf of such Loan Party), certifying as to (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the specimen signatures of the Financial Officers and any other officers of such Borrower persons authorized to sign this Amendmentexecute Loan Documents to which such Loan Party is a party, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate copies of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses resolutions of the Administrative Agent incurred in connection with board of directors or other appropriate governing body of such Loan Party authorizing the preparation, execution and delivery of this Amendment and (iii) copies of such Loan Party’s constituent organizational documents;
(d) The Administrative Agent shall have received, for each Loan Party, a certificate of good standing (or the other instruments and documents to be delivered hereunder, if any equivalent) from the appropriate governing agency of such Loan Party’s jurisdiction of organization (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges extent the concept of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agentgood standing is applicable in such jurisdiction); and
(fe) The Administrative Agent shall have received payment of the Borrower shall pay all reasonable fees Administrative Agent’s and expenses due to the Amendment No. 1 Arranger (including, without limitation, its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) in connection with this Amendment and any other Loan Document, and for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 1 Arranger2 Effective Date, in each case, to the extent payment is required by Section 9.03(a) required to be paid on of the Amendment No. 1Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. Section 3.1. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof Waiver shall become effective as upon receipt by the Lender of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfiedfollowing, in form and substance satisfactory to the Lender and its counsel:
(ia) this Waiver, duly executed by the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent Companies and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentGuarantors;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall of ED certifying: (A) certify that neither its Certificate of Incorporation nor By-laws has been amended since the date of their certification; (B) that attached thereto is a true and a complete copy of resolutions of its adopted by the Board of Directors of ED authorizing the execution, delivery and performance of this Amendmentthe Guaranty, (B) identify by name the Security Agreement and title and bear the signatures of the Financial Officers and any each other officers of such Borrower authorized Loan Document to sign this Amendment, which it is a party; and (C) contain appropriate attachmentsthe incumbency and specimen signature of each officer of ED executing each Loan Document to which it is a party and any certificates or instruments furnished pursuant hereto, including and a certification by another officer of ED as to the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority incumbency and signature of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date)Secretary, and together with certified copies of the Certificate of Incorporation and By-laws of ED;
(iic) a certificate of compliance/status/good standingstanding for ED from the Secretary of the State of Delaware, dated as applicableof a recent date;
(d) an Officer's Certificate, for each Borrower from its jurisdiction substantially in the form of organization and each other jurisdiction in which it carries on business as may be reasonably requested Exhibit 1 attached hereto, duly executed by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective DateCompanies;
(e) a Joinder Agreement, substantially in the Borrowers shall pay all reasonable form of Exhibit 2 attached hereto, duly executed by ED, together with (i) a Schedule A to the Security Agreement completed with respect to ED and documented out-of-pocket expenses (ii) UCC-1 financing statements in a form acceptable to the Lender for such jurisdictions as the Lender determines are necessary to perfect the liens created by the Security Agreement with respect to ED;
(f) a favorable opinion of counsel for ED dated as of the Administrative Agent incurred in connection with date hereof, as required pursuant to Section 6.14 of the preparation, execution and delivery Credit Agreement;
(g) a certificate of this Amendment and insurance from an independent insurance broker confirming the other instruments and documents insurance required to be delivered hereunder, if any (but limited, in maintained pursuant to Section 6.01 of the case of legal fees and expenses, Credit Agreement with respect to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent)ED; and
(fh) such other documents, instruments, agreements, approvals, opinions and evidence as the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Lender may reasonably require.
Appears in 1 contract
Sources: Credit Agreement (Eon Labs Inc)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 First Restatement Effective Date”) when each of on which the following conditions shall have been satisfied:satisfied (or waived):
(ia) the Borrowers The Administrative Agents shall have executed and delivered received counterparts of this Amendment to Agreement executed by the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent Borrowers and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentLenders prior to, 5:00 p.m., New York City time on April 30, 2015 (the “Consent Deadline”);
(b) After giving effect to this Agreement and the transactions contemplated hereby, the representations and warranties set forth in Article 5 of the Borrowers Credit Agreement (xas amended, restated and modified by this Agreement) contained in Section 3 hereof shall be are true and correct in all material respects as of the First Restatement Effective Date, with the same effect as though made on and as of the Amendment No. 1 Effective Date; provided that such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, they date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, further, that any representation ) and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) immediately prior to and immediately after giving effect to this Amendmentthe First Restatement Effective Date, no Default or Event of Default shall have occurred and be continuing;
(dc) the The Administrative Agent Agents shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower Parties, addressed to the Lender Group and reasonably satisfactory to the Administrative Agent)Agents;
(d) The Administrative Agents shall have received, with respect to each Borrower Party, a loan certificate signed by the secretary or assistant secretary of such Person, certifying a true, complete and correct copy of the resolutions of such Person (or its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of this Agreement;
(e) The Administrative Agents shall have received a certificate of the secretary or an assistant secretary of the Administrative Borrower confirming compliance with the conditions precedent set forth in clause (b) of this Section 4; and
(f) the Borrower The Borrowers shall pay have paid all reasonable fees and documented costs and expenses due to of the Amendment No. 1 Arranger Administrative Agents in connection with this Agreement (includingincluding the reasonable and documented fees, without limitationdisbursements and other charges of Shearman & Sterling LLP, fees and reasonable out-of-pocket expenses of as counsel to the Amendment NoAdministrative Agents).
(g) The Administrative Agents shall have received, for the ratable account of each 2021 Term Loan Lender (as defined in the First Amended and Restated Credit Agreement) that consents to this Agreement, a non-refundable upfront fee equal to 0.25% of the aggregate principal amount of the outstanding 2021 Term Loans (as defined in the First Amended and Restated Credit Agreement) as of the First Restatement Effective Date (the “Upfront Fee”). 1 Arranger) required to At the option of the Administrative Agents, the Upfront Fee may be paid on the Amendment No. 1structured as original issue discount.
Appears in 1 contract
Sources: Credit Agreement (Zayo Group LLC)
Conditions of Effectiveness. This First Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of upon the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions shall have been satisfied:precedent (such date, the “First Amendment Effective Date”):
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (each of the documents in subclauses (i) through (iii) being referred to herein as an “Amendment Document”):
(i) this First Amendment, executed and delivered by a duly authorized officer of the Borrower, the Administrative Agent, and each Lender;
(ii) a reaffirmation of the Guaranty Agreement and each Security Document, executed and delivered by a duly authorized officer of each party thereto which is a Group Entity, other than ▇▇▇▇▇▇▇ Fibres Chile S.A.;
(iii) an amendment to that certain Waiver Letter dated as of August 9, 2015 (the “Existing Waiver Letter”) in the form attached as Annex V hereto, executed and delivered by a duly authorized officer of each party thereto (the “Amendment to Waiver Letter”);
(iv) [Reserved.]
(v) (A) to the extent the same have been amended, supplemented or otherwise modified since the Restatement Effective Date, a certificate of a Responsible Officer of each of the Borrower and the Parent Guarantor, certifying copies of the Constituent Documents (including any amendments or supplements thereto) of such Loan Party, (B) the resolutions authorizing and approving the execution, delivery and performance by each of the Borrower and the Parent Guarantor of the Amendment Documents to which such Loan Party is a party, and (C) all documents evidencing all other necessary company action, governmental approvals and third-party consents, if any, for each of Borrower and the Parent Guarantor with respect to each Amendment Document;
(vi) to the extent the same have changed since the Restatement Effective Date, a certificate of a Responsible Officer of each of Borrower and the Parent Guarantor certifying the names and true signatures of the Responsible Officers of such Loan Party authorized to sign each Amendment Document to which such Loan Party is a party;
(vii) a certificate from the chief financial officer or chief executive officer of each the Parent Guarantor, certifying on behalf of the Parent Guarantor, the Borrower, dated Rentech Development Corporation, Rentech WP U.S. Inc., RTK WP Holdings, ULC, RTK WP Canada, ULC, RTK WP2 Holdings, ULC, RTK WP2 Canada, ULC, RTK (Luxembourg) WP S.ÀR.L. and ▇▇▇▇▇▇▇ Fibres, Inc. (collectively, the “Certifying Loan Parties”) that, on and as of the First Amendment No. 1 Effective Date Date, and executed by its Secretary or Assistant Secretaryafter giving effect to the transactions contemplated hereby and the Liens created pursuant hereto, which shall (A) certify the resolutions present fair value of each Certifying Loan Party’s assets exceeds the total amount of such Certifying Loan Party’s liabilities (including, without limitation, contingent liabilities), (B) each Certifying Loan Party has capital and assets sufficient to carry on its Board of Directors authorizing businesses, (C) each Certifying Loan Party is not engaged and is not contemplating engagement in a business or a transaction for which its remaining assets are unreasonably small in relation to such business or transaction, (D) no Certifying Loan Party intends to incur or believes that it will incur debts beyond its ability to pay as they become due and (E) no Certifying Loan Party will be rendered insolvent by the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment Documents and the other instruments and documents Loan Documents to be delivered hereunder, if any (but limited, in which it is a party or by the case consummation of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to transactions contemplated by the Administrative Agent)Amendment Documents; and
(fviii) an opinion of New York counsel and Colorado counsel, solely in respect of the Borrower and the Parent Guarantor, covering the following matters, as applicable: power, authorization and execution, capacity, enforceability, non-contravention (corporate, contractual and legal), governmental approval, compliance with margin regulations and the Investment Company Act, and creation and perfection of the liens and security interests created by the Security Documents in respect of the Additional Units (as defined below).
(b) Administrative Agent shall pay have received evidence that all reasonable Underlying Equity owned by any Group Entity (other than the Put Pledgor) not presently on deposit in the Collateral Account (the “Additional Units”) shall have been deposited in the Collateral Account.
(c) All fees and expenses due required to be paid on or before the First Amendment No. 1 Arranger (Effective Date, including, without limitation, the Agency Fee and fees and reasonable out-of-pocket expenses of counsel to Administrative Agent and Lenders, shall have been paid.
(d) Borrower shall have provided each Lender with a completed and executed Form G-3 issued by the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Federal Reserve System.
Appears in 1 contract
Sources: Loan Agreement (Rentech, Inc.)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 3 Effective Date”, which date is October 13, 2015) when each of the following conditions shall have been satisfied:
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate counterparts of each Borrower, dated the this Amendment No. 1 Effective Date duly executed and executed delivered by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this AmendmentBorrower, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this AmendmentMLP, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower Consenting Lender and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to D) the Administrative Agent on the Second Amendment Effective Date), and Agent.
(iib) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the The Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses have received, on behalf of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment itself and the other instruments and documents to be delivered hereunderLenders, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 3 Effective Date and addressed to the Administrative Agent and the Consenting Lender, in form and substance reasonably satisfactory to the Administrative Agent); and.
(c) The Administrative Agent shall have received (i) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the Amendment No. 3 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 3(e) and (f) the Borrower shall pay of this Amendment.
(d) Payment of all reasonable fees and expenses due to the Amendment No. 1 Administrative Agent and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Arranger”) (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower).
(including, without limitation, fees e) The representations and reasonable out-of-pocket expenses warranties of counsel to the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 1 Arranger3 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) required as of such earlier date.
(f) After giving effect to be paid on this Amendment, no Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) The Administrative Agent shall have received from the Borrower a consent fee payable for the account of the Consenting Lender, in an amount equal to 0.25% of the aggregate principal amount of Commitments held by the Consenting Lender as of the Amendment No. 13
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment and is subject to the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfiedprecedent that:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(da) the Administrative Agent shall have received received:
(i) a certificate duly executed originals of this Amendment from each of the Borrower, the Lenders (or the Administrative Agent with the consent in writing of the Lenders), each Increasing Lender, each Assuming Lender, if any, and each Departing Lender (as defined below), if any;
(ii) duly executed Revolving Notes for the account of each BorrowerAssuming Lender, if any, and any Increasing Lender, dated as of the Amendment No. 1 Effective Date in a principal amount equal to such Lender’s Revolving Commitment after giving effect to the Revolving Commitment Increase hereunder;
(iii) evidence reasonably satisfactory to it that on or prior to the Effective Date, (x) all obligations of the Borrower under the 5-Year Agreement shall have been terminated and executed by its Secretary be of no further force or Assistant Secretary, which shall effect (Aother than in respect of contingent indemnity obligations and any other obligation that expressly survives the termination thereof);
(iv) certify the (x) duly certified resolutions of its Board of Directors the Borrower (in form and substance reasonably acceptable to the Administrative Agent) authorizing the execution, delivery and performance of this Amendment, (B) identify by name Amendment and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this AmendmentCredit Agreement as amended hereby, and (Cy) contain appropriate attachments, including the certificate or articles opinion(s) of incorporation or organization of such Borrower certified by the relevant authority counsel of the jurisdiction of organization of such Borrower in form and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be substance reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel acceptable to the Administrative Agent);
(v) from the Borrower for its account and the account of each Lender, all fees payable pursuant to that certain Fee Letter, dated as of November 16, 2006, by and among the Borrower and the Administrative Agent; and
(fvi) such other documents, instruments and agreements as the Administrative Agent shall reasonably request; and
(b) the Borrower Administrative Agent and the Lenders shall pay all reasonable fees have administered the reallocation of the Revolving Commitments and expenses due to Term Loans among the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Lenders in accordance with their respective ratable shares thereof.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Second Amendment and is subject to the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfiedprecedent that:
(a) the Administrative Agent shall have received (i) the Borrowers shall have executed and delivered counterparts of this Second Amendment duly executed by the Borrower, the Lenders required to execute this Second Amendment in order to give effect hereto, and the Administrative Agent, and the Consent and Reaffirmation attached hereto as Annex II duly executed by each Guarantor, and (ii) the Required Lenders shall have executed such other opinions, instruments and delivered counterparts of this Amendment to documents as are reasonably requested by the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendmentidentified on Annex III hereto;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof Borrower shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that have paid, to the extent that such representations invoiced at least one (1) Business Day in advance, all reasonable and warranties specifically refer to an earlier date, they shall be true documented fees and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as expenses of the Administrative Agent and its affiliates (including reasonable and documented attorneys’ fees and expenses) in connection with this Second Amendment No. 1 Effective Date in all material respects with and the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject other Loan Documents related to any materiality qualifier shall be be true and correct in all respects)this Second Amendment;
(c) the Administrative Agent shall have received for the benefit of each Lender all fees and other amounts due and payable on or prior to and immediately after giving effect to the effective date of this Second Amendment, no Default or Event of Default shall have occurred including without limitation, those fees described in the Fee Letter dated April 13, 2021 between the Borrower and be continuing;JPMorgan Chase Bank, N.A.; and
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days days prior to the Amendment No. 1 Effective Date;
(e) effective date for this Second Amendment, all documentation and other information regarding the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expensesPatriot Act, to the actual reasonable extent requested in writing by any Lender from the Borrower at least ten (10) days prior to such date and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel (ii) to the Administrative Agent); and
extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (f5) days prior to such effective date, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to such effective date, a Beneficial Ownership Certification in relation to the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1have received such Beneficial Ownership Certification.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when on which, and only if, each of the following conditions precedent shall have been satisfied:
(ia) the Borrowers The Administrative Agent shall have executed received, in form and delivered substance reasonably satisfactory to the Administrative Agent (x) counterparts of this Amendment executed by the Borrower, the Administrative Agent and those Lenders comprising Required Lenders or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the Guarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, counterparts of each of the Pledge Agreement and the Intercreditor Agreement executed by each of the parties thereto.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or managing member thereof certifying as to the matters required by the certificate described in Section 3.01(a)(viii) of the Existing Credit Agreement, in each case as of the Amendment Effective Date, (b) a certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(d) The Administrative Agent shall be satisfied that all filings necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement will be made promptly following the Amendment Effective Date.
(e) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (iii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties an amendment of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit 7 Year Term Loan Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior an amendment to the Amendment No. 1 Effective Date;5 Year Term Loan Agreement, in each case modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(ef) (i) the Borrowers shall pay fees provided for in Section 10 and (ii) all of the reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with (including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to for the Amendment No. 1 ArrangerAdministrative Agent) required to be paid due and payable on the Amendment No. 1Effective Date shall have been paid in full.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and is subject to the amendment provisions of Section 14.11 of the 2005 Credit Agreement as set forth in Agreement. Section 1 hereof of this Agreement shall become effective as of the date first date above written (such date being referred to as the “Amendment No. 1 Effective Date”) when each of and only when, on or before January 9, 2009, the following conditions Administrative Agent shall have received:
(a) Notice from the administrative agent under the 2004 Credit Agreement that all commitments thereunder have been satisfiedterminated and that all amounts payable or accrued under such credit agreement have been paid in full.
(b) A security agreement in substantially the form of Annex B hereto (the “Security Agreement”), duly executed by each Credit Party and each Subsidiary listed on Schedule I hereto (collectively with the Credit Parties, the “Granting Parties”), together with:
(i) acknowledgment copies or stamped receipt copies of financing statements, duly filed on or before the Borrowers shall have executed Amendment Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may reasonably request in order to perfect and delivered counterparts protect the liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(ii) the results of this Amendment a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Collateral Grantors in the jurisdictions contemplated by clause (i) above and copies of the financing statements (or similar documents) disclosed by such search.
(c) A Canadian security agreement in form and substance reasonably satisfactory to the Administrative Agent, duly executed by J▇▇▇▇ Apparel Group Canada, LP, together with evidence of such filings and other actions required under the laws of the applicable jurisdiction that the Administrative Agent may reasonably request in order to perfect the liens and security interests created thereunder.
(iid) the Required Lenders shall have executed A certificate from a Responsible Officer, in form and delivered counterparts of this Amendment substance reasonably satisfactory to the Administrative Agent and (iii) Agent, to the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the effect that all representations and warranties of the Borrowers (x) Borrower contained in Section 3 hereof shall be true the 2005 Credit Agreement are true, correct and correct complete in all material respects with the same effect as if made on and as of the Amendment No. 1 Effective Date; provided that , except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, they date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided, further, that the Borrower is not in violation of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth of the covenants contained in the 2005 Credit Agreement are true and correct on and Agreement, as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified dateamended hereby; that, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to the transactions contemplated by this Amendment, no Default or Event of Default shall have has occurred and be is continuing;
; and that each of the conditions to the effectiveness of this Amendment has been satisfied or waived (d) assuming satisfaction of the Administrative Agent shall have received where not advised otherwise).
(ie) a A certificate of each the secretary, assistant secretary or general counsel of the Borrower, dated each Additional Obligor and each other Grantor (as defined in the Security Agreement) certifying as to the incumbency and genuineness of the signature of each officer of such Person executing this Amendment No. 1 Effective Date or each other Loan Document to which it is a party and executed certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing of such Person authorizing, in the case of the Borrower, the borrowings contemplated under the 2005 Credit Agreement, as amended hereby, and in the case of each such Person, the execution, delivery and performance of this AmendmentAmendment or the Loan Documents to which it is to be a party.
(f) Favorable opinions of I▇▇ ▇. ▇▇▇▇▇▇, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered General Counsel to the Administrative Agent on the Second Amendment Effective Date)Borrower, and (ii) a certificate of compliance/status/good standingCravath, as applicableSwaine & M▇▇▇▇ LLP, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior special counsel to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparationBorrower, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of S▇▇▇▇▇▇▇ H▇▇▇▇▇▇▇ ▇▇▇▇▇ & L▇▇▇▇ LLP, Pennsylvania counsel to the Borrower, and Drinker B▇▇▇▇▇ & R▇▇▇▇ LLP, New Jersey counsel to the Borrower, C▇▇▇▇▇▇ ▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP▇▇, Canadian counsel to the Borrower, and such other opinions as may be agreed, addressed to the Administrative Agent); andAgent and the Lenders with respect to the Borrower, the Loan Documents and such other matters as the Lenders shall reasonably request.
(fg) the The Borrower shall pay have paid all reasonable accrued fees and expenses due to of the Amendment No. 1 Arranger Joint Lead Arrangers and Joint Bookrunners and the Administrative Agent (including, without limitation, including the accrued fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 ArrangerJoint Lead Arrangers and Joint Bookrunners) required and the amendment fees payable to be paid on the Amendment No. 1Lenders for which invoices have been received.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when on which, and only if, each of the following conditions precedent shall have been satisfiedsatisfied (or waived by the Required Lenders):
(a) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, counterparts of this Amendment executed by each of the Loan Parties, Lenders that constitute the Required Lenders and the Administrative Agent.
(b) All loans and other obligations owing by the Borrower under the PNC Bank Credit Agreement and all outstanding Loans (in the case of the Loans, without a corresponding permanent reduction of the Revolving Commitments) shall have been, or substantially concurrently with the Amendment Effective Date shall be, paid in full.
(c) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, an amendment to the KeyBank 2017 Credit Agreement, it being understood that, in each case, any such amendment that is in substantially the same form as this Amendment or otherwise substantially consistent with the summary of amendment terms previously approved by the Administrative Agent shall be deemed satisfactory.
(d) Since May 3, 2021, there shall not have been any Asset Disposition of an Unencumbered Property or any incurrence of Indebtedness secured by a Lien on any Unencumbered Property.
(e) The Administrative Agent shall have received the following items from the Borrower:
(i) Certificates of good standing for the Borrowers shall have executed Borrower and delivered counterparts the Company from the states of this Amendment organization of such Person, certified by the appropriate governmental officer and dated not more than thirty (30) days prior to the Administrative Agent, Amendment Effective Date;
(ii) Copies of the Required Lenders shall have executed formation documents of the Borrower and delivered counterparts the Company certified by an officer of this Amendment to the Administrative Agent and such Person, together with all amendments thereto;
(iii) Incumbency certificates, executed by officers of the Administrative Agent Borrower and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant SecretaryCompany, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures signature of the Financial Officers and any other officers of such Borrower Persons authorized to sign the Loan Documents on behalf of such Person, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower; and
(iv) Copies, certified by a Secretary or an Assistant Secretary of the Borrower and the Company of the resolutions (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for the Administrative Agent) authorizing the transactions contemplated by this Amendment, and (C) contain appropriate attachmentsthe execution, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority delivery and performance of the jurisdiction of organization of Loan Documents to be executed and delivered by such Borrower and a true and correct copy of its bylaws Persons.
(or a confirmation that there have been no changes to such documents since those that were delivered to i) The fees separately agreed by the Administrative Agent on and the Second Amendment Effective Date)Borrower, and (ii) a certificate of compliance/status/good standing, as applicable, for each to the extent invoiced to the Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five one (51) Business Days Day prior to the Amendment No. 1 Effective Date;
(e) , all of the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with (including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of one firm of counsel to for the Amendment No. 1 ArrangerAdministrative Agent) required to be paid due and payable on the Amendment No. 1Effective Date shall have been paid in full.
Appears in 1 contract
Sources: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
Conditions of Effectiveness. This Amendment and the amendment The effectiveness of the Credit Agreement as set forth in Section 1 hereof shall become effective as of Consents and this Amendment are subject to the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each satisfaction or waiver of the following conditions precedent (the date of such satisfaction or waiver being the “Second Amendment Effective Date”):
(a) the Administrative Agent shall have been satisfied:
(i) the Borrowers shall have executed and delivered received copies of counterparts of this Amendment to the Administrative Agentduly executed by each Loan Party, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentRequired Lenders (as defined in the Credit Agreement);
(b) the representations and warranties Administrative Agent shall have received (i) an opinion of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, New York counsel to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates Subsidiary Guarantors and (yii) set forth in an opinion of B▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to the Credit Agreement are true Subsidiary Guarantors, each addressed to the Administrative Agent and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)Lenders;
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Administrative Agent may reasonably require evidencing the identity, authority and be continuingcapacity of each Responsible Officer authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents;
(d) the Administrative Agent shall have received copies, certified by a Responsible Officer of each Subsidiary Guarantor, of (i) a the certificate or articles of each Borrowerincorporation or formation, dated articles of organization, or other comparable organizational instrument of such Subsidiary Guarantor, (ii) the Amendment No. 1 Effective Date by-laws or operating agreement (or the equivalent governing documents) of such Subsidiary Guarantor and executed (iii) all necessary resolutions or other action taken by its Secretary or Assistant Secretary, which shall (A) certify the resolutions board of its Board directors of Directors authorizing such Subsidiary Guarantor to authorize the execution, delivery and performance of this AmendmentAmendment by such Subsidiary Guarantor;
(e) the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that each Subsidiary Guarantor is validly existing, (B) identify by name in good standing and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized qualified to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of such Borrower and a true and correct copy properties or the conduct of its bylaws business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(or a confirmation that there f) the Borrower shall have been no changes to such documents since those that were delivered provided to the Administrative Agent on and the applicable Lender the documentation and other information reasonably requested in writing by the Administrative Agent or such Lender at least ten (10) Business Days prior to the Second Amendment Effective Date)Date that is required by regulatory authorities applicable to such Lender under applicable “know your customer” and anti-money-laundering rules and regulations, and (ii) a certificate of compliance/status/good standingincluding, as applicablewithout limitation, for the Patriot Act, in each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent case at least five (5) Business Days prior to the Second Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(fg) the Borrower Administrative Agent shall pay have received payment of all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, including fees and reasonable out-of-pocket expenses of counsel to for the Amendment No. 1 ArrangerAdministrative Agent) required to be paid by the Borrower to the Administrative Agent on or prior to the Second Amendment No. Effective Date in connection with this Amendment; provided that invoices for such fees and expenses have been presented to the Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the Second Amendment Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof (i) The Incremental Amendments shall become effective as upon satisfaction of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each all of the following conditions (the “Incremental Effective Date”):
(a) The Administrative Agent (or its counsel) shall have been satisfied:
received (i) the Borrowers shall have executed and delivered counterparts of this Amendment signed by the U.S. Borrower, the Guarantors, the Administrative Agent, and (ii) Lender Addenda signed by the Incremental Term B-3 Dollar Lenders and the Incremental Term B-2 Euro Lenders.
(b) The Administrative Agent shall have received (x) the legal opinion of Ropes & ▇▇▇▇ LLP, counsel to the Loan Parties and (y) the legal opinion of Smith, Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Loan Parties, in each case, dated as of the Incremental Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received (i) copies of each Organization Document for each Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Incremental Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the Required Lenders shall have executed officers of each Borrower and delivered counterparts each Guarantor executing this Amendment; (iii) resolutions of the Board of Directors or similar governing body of each Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Incremental Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (iv) if available, a good standing certificate from the applicable Governmental Authority of each Borrower’s and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Incremental Effective Date.
(d) The Administrative Agent and the Lead Arrangers shall have been paid all fees payable to the Administrative Agent and the Lead Arrangers, respectively, on the Incremental Effective Date and, to the extent invoiced at least two (iii2) Business Days prior to the Administrative Agent and Incremental Effective Date (or as otherwise reasonably agreed by the Multicurrency Parent Borrower), out-of-pocket expenses required to be paid by the Parent Borrower in connection with this Amendment, including the Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in accordance with Section 10.04 of the Existing Credit Agreement.
(e) The Administrative Agent shall have executed a counterpart received an officer’s certificate with respect to the Borrowers and the Guarantors in form and substance reasonably satisfactory to the Administrative Agent as to satisfaction of the conditions set forth in clauses (j) and (k) of this AmendmentSection 4(i).
(f) To the extent requested at least three (3) Business Days prior to the Incremental Effective Date (or as otherwise reasonably agreed by the Parent Borrower), the Administrative Agent, the Lead Arrangers and any requesting Lender shall have received a Note executed by the applicable Borrower in favor of each Incremental Term B-3 Dollar Lender and Incremental Term B-2 Euro Lender requesting a Note, if any.
(g) [Reserved];
(bh) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-3 Dollar Loans and the Incremental Term B-2 Euro Loans no later than 12:00 p.m. on the Business Day immediately prior to the Incremental Effective Date.
(i) At least three (3) Business Days prior to the Incremental Effective Date, the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including a certification regarding beneficial ownership as required by the 31 C.F.R. § 1010.230), including the USA PATRIOT Act, that has been requested in writing at least ten (10) Business Days prior to the Incremental Effective Date.
(j) The representations and warranties of each Loan Party set forth in Article V of the Borrowers (x) contained Existing Credit Agreement and in Section 3 hereof each other Credit Document shall be true and correct in all material respects on and as of the Amendment No. 1 Incremental Effective Date; provided that , except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates dates.
(k) Immediately after the Incremental Effective Date and (y) set forth in the Credit Agreement are true and correct on and as making of the Amendment No. 1 Incremental Term B-3 Dollar Loans and the Incremental Term B-2 Euro Loans on the Incremental Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which contemplated by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;exist.
(dl) The Administrative Agent shall have received a Solvency Certificate from a Responsible Officer of the Parent Borrower in substantially the form attached hereto as Annex C.
(ii) The Extension Amendments shall become effective upon satisfaction of all the following conditions (the “Extension Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (A) (i) counterparts of this Amendment signed by the Borrowers, the Guarantors, the Administrative Agent, and (ii) a counterpart of this Amendment signed by each Replacement Lender and Lender Addenda signed by the Extended Maturity Term A Dollar Lenders, the Extended Maturity Term A Euro Lenders, the Extended Maturity U.S. Revolving Credit Lenders, the Extended Maturity Japanese Revolving Credit Lenders, the Extended Maturity Swiss/Multicurrency Revolving Credit Lenders, the L/C Issuer and the Swing Line Lender, and (B) in the case of the Extension Amendments with respect to the Extended Maturity Swiss/Multicurrency Revolving Credit Commitments, the Swiss Reaffirmation duly executed and delivered by the Swiss Guarantors.
(b) The Administrative Agent shall have received (x) the legal opinion of Ropes & ▇▇▇▇ LLP, counsel to the Loan Parties, (y) the legal opinion of ▇▇▇▇ & Staehelin, Swiss counsel for the Lead Arrangers, and (z) the legal opinion of Nagashima Ohno & Tsunematsu, Japanese counsel for the Loan Parties, in each case, dated as of the Extension Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received (i) a certificate copies of each BorrowerOrganization Document for each Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 1 Extension Effective Date or a recent date prior thereto; (ii) signature and executed by its Secretary or Assistant Secretary, which shall incumbency certificates of the officers of each Borrower and each Guarantor executing this Amendment; (Aiii) certify the resolutions of its the Board of Directors or similar governing body of each Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment, (B) identify by name Amendment and title and bear the signatures certified as of the Financial Officers Extension Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and any other officers of such Borrower authorized to sign this Amendment, effect without modification or amendment and (Civ) contain appropriate attachmentsif available, including a good standing certificate from the certificate or articles applicable Governmental Authority of incorporation or organization of such Borrower certified by the relevant authority of the each Borrower’s and each Guarantor’s jurisdiction of incorporation, organization of such Borrower or formation, each dated a recent date prior to the Extension Effective Date.
(d) The Administrative Agent and a true and correct copy of its bylaws (or a confirmation that there the Lead Arrangers shall have been no changes to such documents since those that were delivered paid all fees payable to the Administrative Agent and the Lead Arrangers, respectively, on the Second Amendment Extension Effective Date)Date and, and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by to the Administrative Agent extent invoiced at least five two (52) Business Days prior to the Amendment No. 1 Extension Effective Date;
Date (e) or as otherwise reasonably agreed by the Borrowers shall pay all reasonable and documented Parent Borrower), out-of-pocket expenses of required to be paid by the Administrative Agent incurred Parent Borrower in connection with this Amendment, including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel in accordance with Section 10.04 of the Existing Credit Agreement.
(e) The Administrative Agent shall have received an officer’s certificate with respect to the Borrowers and the Guarantors in form and substance reasonably satisfactory to the Administrative AgentAgent as to satisfaction of the conditions set forth in clauses (j) and (k) of this Section 4(ii); and.
(f) To the Borrower shall pay all reasonable fees and expenses due extent requested at least three (3) Business Days prior to the Amendment No. 1 Arranger Extension Effective Date (includingor as otherwise reasonably agreed by the Parent Borrower), without limitationthe Administrative Agent shall have received a Note executed by the applicable Borrower in favor of each Extended Maturity Term A Lender and Extended Maturity Revolving Credit Lender requesting a Note, if any.
(g) The Administrative Agent shall have been paid, for the benefit of the Applicable Lenders, all accrued and unpaid interest on the Term A Dollar Loans, the Term A Euro Loans, the U.S. Revolving Credit Loans, the Japanese Revolving Credit Loans and the Swiss/Multicurrency Revolving Credit Loans to but excluding the Extension Effective Date (whether or not then due) and all accrued and unpaid fees under the Term A Facility, the U.S. Revolving Credit Facility, the Japanese Revolving Credit Facility and reasonable out-of-pocket expenses of counsel the Swiss/Multicurrency Revolving Credit Facility (whether or not then due).
(h) [Reserved.]
(i) At least three (3) Business Days prior to the Amendment No. 1 ArrangerExtension Effective Date, the Administrative Agent, the Lead Arrangers and any requesting Lender shall have received all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including a certification regarding beneficial ownership as required by the 31 C.F.R. § 1010.230), including the USA PATRIOT Act, that has been requested in writing at least ten (10) required Business Days prior to the Extension Effective Date.
(j) The representations and warranties of each Loan Party set forth in Article V of the Existing Credit Agreement and in each other Credit Document shall be paid true and correct in all material respects on and as of the Amendment No. 1Extension Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(k) Immediately after giving effect to the Extension Amendments, no Default or Event of Default shall exist.
(l) The Administrative Agent shall have received a Solvency Certificate from a Responsible Officer of the Parent Borrower in substantially the form attached hereto as Annex C.
(iii) the Required Lender Amendments shall become effective upon satisfaction of all the following conditions (“Required Lender Amendments Effective Date”):
(a) The Incremental Effective Date shall have occurred.
(b) The Extension Effective Date shall have occurred.
(c) The Administrative Agent shall have received Lender Addenda signed by the Required Lenders (after giving effect to the Incremental Amendments and the Extension Amendments).
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied:
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment Prior to the Administrative Agent, 1:00 p.m. (iiNew York City time) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) three Business Days prior to the Amendment No. 1 Effective Date;
(e) , the Borrowers Borrower shall pay all reasonable and documented out-of-pocket expenses of have submitted to the Administrative Agent incurred a prepayment notice pursuant to Section 5.1(a) of the Amended Credit Agreement in connection respect of the Existing Term Loans.
(b) The Borrower shall have submitted to the Administrative Agent a Notice of Borrowing which shall comply with the preparationrequirements of Section 2.3(a) of the Amended Credit Agreement.
(c) The Administrative Agent shall have received this Amendment, execution duly executed and delivery delivered by (A) the Borrower, (B) each Cashless Option Lender and each Post-Closing Option Lender, (C) the Administrative Agent and (D) each Additional Tranche 1 Term Loan Lender.
(d) The Administrative Agent shall have received, on behalf of this Amendment itself, the Collateral Agent and the other instruments and documents to be delivered hereunderLenders, if any an opinion of (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower and (ii) ▇▇▇▇▇▇▇▇ and Wedge, Nevada counsel for the Borrower, in each case, dated the Amendment No. 1 Effective Date and addressed to the Administrative Agent); and, the Collateral Agent and the Lenders, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(fe) The Administrative Agent shall have received a certificate of the Borrower shall pay all reasonable fees Loan Parties, substantially in the form of Exhibit G-1 to the Amended Credit Agreement, with appropriate insertions, executed by the Secretary or any Assistant Secretary of each Loan Party, and expenses due attaching the documents referred to in clause (g) below; provided that the Administrative Agent hereby acknowledges that it has received such certificate prior to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of is subject to the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers The Administrative Agent shall have executed and delivered received counterparts of this Amendment duly executed by the Borrowers, the Required Lenders (including each existing Lender whose Revolving Facility Commitment is increasing pursuant to the terms of this Amendment) and the Administrative Agent.
(b) The Administrative Agent shall have received counterparts of the Consent and Reaffirmation attached as Exhibit A hereto duly executed by the Subsidiary Loan Parties.
(c) The Administrative Agent shall have received amendment and/or confirmation agreements in respect of the existing Luxembourg pledge documentation in form and substance reasonably satisfactory to the Administrative Agent, .
(iid) the Required Lenders The Administrative Agent shall have executed and delivered counterparts of this Amendment received a favorable written opinion (addressed to the Administrative Agent and (iii) the Administrative Agent Lenders and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of dated the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as Date) of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as each of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇, Halter & ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, (ii) LexField, special Luxembourg counsel for Chart Luxembourg and (iii) ▇▇▇▇▇ Day, special Hong Kong counsel for Chart Hong Kong, in each case in form and substance reasonably satisfactory to the Administrative Agent); andAgent and covering such matters relating to the Loan Parties, the Loan Documents this Amendment or the Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(e) The Administrative Agent shall have received such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrowers, the authorization of the Transactions and any other legal matters relating to the Borrowers, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) The Administrative Agent shall have received a certificate, dated the Borrower shall pay Amendment Effective Date and signed by the President, a Vice President or a Financial Officer of the Company, certifying (i) that the representations and warranties contained in Article III of the Credit Agreement (as amended hereby) are true and correct in all reasonable fees material respects (or in all respects if the applicable representation or warranty is qualified by Material Adverse Effect or other materiality qualifier) on and expenses due as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct in all material respects (or in all respects if the applicable representation or warranty is qualified by Material Adverse Effect or other materiality qualifier) as of such earlier date), and (ii) that no Event of Default or Default has occurred and is continuing as of such date.
(g) The Administrative Agent shall have received (i) for the account of each Lender that delivers its executed signature page to this Amendment No. 1 Arranger by no later than the date and time specified by the Administrative Agent, an amendment fee in an amount equal to the applicable amount previously disclosed to the Lenders and (includingii) for the account of each Lender participating in the increase to the Commitments pursuant hereto that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent, without limitation, fees an upfront fee in an amount equal to the applicable amount previously disclosed to the Lenders.
(h) The Administrative Agent shall have received payment and/or reimbursement of the Administrative Agent’s and its affiliates’ reasonable and documented out-of-pocket fees and expenses (including, to the extent invoiced, reasonable fees and expenses of counsel for the Administrative Agent) in connection with the Loan Documents.
(i) The Administrative Agent shall have made such reallocations, sales, assignments or other relevant actions in respect of each Lender’s credit exposure under the Credit Agreement as are necessary in order that each such Lender’s Revolving Facility Credit Exposure and outstanding Revolving Facility Loans hereunder reflects such Lender’s Revolving Facility Percentage of the outstanding aggregate Revolving Facility Credit Exposures under the Credit Agreement as amended hereby. The Borrowers hereby agree to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the Amendment No. 1 Arranger) required to be paid sale and assignment of any Eurocurrency Loans and the reallocation described in this clause (i), in each case on the Amendment No. 1terms and in the manner set forth in Section 2.16 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment The effectiveness of this Agreement, the occurrence of the Effective Date and the amendment obligation of the L/C Issuer and each Revolving Lender to make its initial Credit Agreement as set forth in Section 1 hereof shall become effective as of Extension under the first date (such date being referred Revolving Credit Facility hereunder are subject to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall have been satisfiedbe originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment Agreement;
(ii) a Note executed by the Borrower and dated the Effective Date in favor of each Lender requesting a Note;
(iii) the Omnibus Reaffirmation and the Guaranty, each duly executed by the Credit Parties and dated the Effective Date;
(iv) a modification to the Mortgage, dated as of the Effective Date, duly executed by MDDC, together with evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such modification as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable effectively to create a valid, perfected Lien against the properties and the leasehold interests described therein or purported to be covered thereby;
(iiv) a modified 110.5 modification endorsement to the Required Lenders shall have executed A.L.T.A loan policy issued August 6, 2010 by Fidelity National Title Insurance Company in favor of Administrative Agent (the “Existing Title Policy”), which endorsement among other things dates down the effective date of the Existing Title Policy and delivered counterparts endorsements thereto, updates the vesting of this Amendment title to the properties covered by such Existing Title Policy, and insures that there are no additional title or survey exceptions since the original effective date of the Existing Title Policy except as approved by the Administrative Agent in its sole discretion, and/or such other endorsements as are reasonably required by the Administrative Agent;
(vi) evidence of the following insurance coverages:
(A) comprehensive general public liability insurance in an amount reasonably satisfactory to the Administrative Agent and the Borrower covering the Borrower and MDDC;
(iiiB) worker’s compensation insurance (or self insurance therefor) and employer’s liability insurance for the Borrower and MDDC, all in such amounts as may be required by statute;
(C) if commercially available, flood insurance if the Site is located in an area designated by the Secretary of Housing and Urban Development as a special flood hazard area; and
(D) rental or business interruption insurance in an amount not less than $300,000,000 per occurrence, subject to standard deductibles and exclusions;
(vii) a Notice of Special Flood Hazards and Availability of Federal Disaster Relief Assistance duly executed by the Credit Parties which acknowledges that the Site is in an area that has been identified by the director of the Federal Emergency Management Agency as a special flood hazard area and acknowledging the flood insurance requirements applicable in connection therewith;
(viii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the Multicurrency Administrative Agent shall have executed other Loan Documents to which such Loan Party is a counterpart of this Amendmentparty;
(bix) such documents and certifications as the representations Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and warranties of the Borrowers that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where such Person is qualified to do business;
(x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges favorable opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G;
(xi) a certificate of the General Counsel of a Credit Party or the General Counsel of ▇▇▇▇ stating that each Loan Party has received all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party and that such consents, licenses and approvals are in full force and effect;
(xii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied and that since December 31, 2012, there has been no material adverse change in the business, operations, debt service capacity, properties, assets, nature of business, liabilities (including environmental liabilities) or prospects of the Credit Parties and their Subsidiaries, taken as a whole;
(xiii) evidence that the Existing Credit Agreement has been, or concurrently with the Effective Date is being, terminated;
(xiv) an Estoppel Certificate from the new ground lessor of certain of the properties covered by the Existing Title Policy in form reasonably acceptable to the Administrative Agent); provided, however, if such Estoppel Certificate is not obtained by the Borrower prior to the date that all other conditions precedent to the Effective Date have been satisfied, this condition shall at the Borrower’s request be waived by the Administrative Agent and upon such waiver the Borrower covenants to continue to use commercially reasonable efforts after the Effective Date to obtain and deliver such Estoppel Certificate to the Administrative Agent; and
(fxv) such other assurances, certificates, documents, consents or opinions as the Borrower shall pay all reasonable Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on or before the Amendment No. 1Effective Date shall have been paid.
(c) The Effective Date shall have occurred on or before July 26, 2013.
Appears in 1 contract
Sources: Credit Agreement (Marina District Finance Company, Inc.)
Conditions of Effectiveness. This Sixth Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become be effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each upon satisfaction of the following conditions shall have been satisfiedconditions:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(ba) the representations and warranties of the Borrowers (x) contained set forth in Section 3 hereof 2 of this Sixth Amendment shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)correct;
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(db) the Administrative Agent shall have received (i) a certificate counterparts of each Borrower, dated the this Sixth Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall the Determining Lenders;
(Ac) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent shall have received counterparts of this Sixth Amendment executed by the Borrower and acknowledged by each Guarantor;
(d) Special Counsel shall have engaged FTI Consulting, Inc. as financial advisor on behalf of the Second Amendment Effective Date)Administrative Agent, and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction such engagement shall have been acknowledged in which it carries on business as may be reasonably requested writing by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective DateBorrower;
(e) the Borrowers Borrower shall pay all reasonable and documented out-of-pocket expenses have paid to Special Counsel a retainer fee of the Administrative Agent incurred $100,000 in connection with the preparation, execution and delivery retention of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); anda financial advisor;
(f) the Borrower shall pay have paid to Special Counsel a retainer fee of $200,000 in connection with Special Counsel's ongoing representation of the Administrative Agent;
(g) payment of all reasonable outstanding legal fees and expenses due of Special Counsel;
(h) payment of all outstanding fees, costs and other expenses of the Administrative Agent and its Affiliates, including professional expenses;
(i) receipt from counsel to Borrower of a legal opinion regarding certain legal matters in connection with the Sixth Amendment and the Priority Term Loan, including, but not limited to a no conflicts with material agreements opinion, in form and substance satisfactory to Administrative Agent;
(j) the Priority Term Loan is consummated; and
(k) the Administrative Agent shall have received in form and substance satisfactory to the Amendment No. 1 Arranger (includingAdministrative Agent, without limitationsuch other documents, fees certificates and reasonable out-of-pocket expenses of counsel to instruments as the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Lenders shall require.
Appears in 1 contract
Sources: Credit Agreement (Clubcorp Inc)
Conditions of Effectiveness. This Amendment and the amendment and restatement of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Restatement Effective Date”) when each of the following conditions shall have been satisfied:
(ia) the Borrowers The Administrative Agent shall have received this Amendment, duly executed and delivered counterparts by (A) the Loan Parties and (B) the Majority Lenders, (C) the Cashless Option Lenders, (D) each Revolving Credit Lender after giving effect hereto and (E) Barclays Bank PLC.
(b) The Administrative Agent shall have received, on behalf of this Amendment itself, the other Agents, the Lenders and each L/C Issuer, an opinion of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Kansas counsel for the Borrowers, in each case, dated the Restatement Effective Date and addressed to the Agents, the Issuing Bank and the Lenders, in each case in form and substance satisfactory to the Administrative Agent, .
(iic) the Required Lenders shall have executed Payment of all reasonable fees and delivered counterparts of this Amendment expenses due to the Administrative Agent and (iii) as agreed to in writing between the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
Parent Borrower) (b) the representations including, without limitation, fees and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) in each case required to be paid on the Amendment NoRestatement Effective Date. 1Simultaneous with effectiveness the Term Lenders under the Existing Credit Agreement shall have been paid all accrued principal and interest under the Existing Credit Agreement as well as all premiums required by Section 2.08(i) of the Existing Credit Agreement. Simultaneous with effectiveness the Revolving Credit Lenders under the Existing Credit Agreement shall have been paid all accrued principal (which may occur by cashless netting against new Revolving Credit Loans) and interest under the Existing Credit Agreement.
(d) The Administrative Agent shall have received for the account of each Revolving Credit Lender, a consent fee in an amount equal to 0.125% multiplied by such Revolving Credit Lender’s Revolving Credit Commitment on the Restatement Effective Date.
(e) The Administrative Agent shall have received with respect to each Mortgaged Property, (x) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination and (y) if any improvements located on any Mortgaged Property are located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and (ii) evidence of flood insurance satisfying the requirements of Section 8.03(c)(iv) of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”, which date is June 14, 2013) when each of the following conditions shall have been satisfied:
(ia) the Borrowers The Administrative Agent shall have received this Amendment, duly executed and delivered counterparts by (A) the Borrowers, (B) Holdings, (C) the Guarantors, (D) the Other Obligors, (E) the Cashless Option Lenders, (F) the Revolving Lenders electing to roll over their Revolving Commitments into Tranche A Revolving Commitments, (G) the Additional Term B-1 Lender, (H) the Additional Revolving Lenders (if any) and (I) the Administrative Agent.
(b) The Administrative Agent shall have received a Borrowing Request prior to the requested date of this the Amendment No. 1 Effective Date.
(c) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, an opinion from (i) Cravath, Swaine & ▇▇▇▇▇ LLP, special New York counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Senior Legal Counsel of Holdings and (iii) each of the local counsel set forth on Schedule 4.01(c) to the Credit Agreement reasonably requested by the Administrative Agent, each dated as of the Amendment No. 1 Effective Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(iid) the Required Lenders The Administrative Agent shall have executed received such (x) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and delivered counterparts capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (y) a certificate, dated as of the Amendment No. 1 Effective Date, signed by a Responsible Officer of Holdings, confirming satisfaction of the conditions set forth in Sections 4(f) and (g).
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Arrangers (iii) as agreed to in writing between the Administrative Agent and/or the Arrangers and the Multicurrency Administrative Agent Borrowers), in each case required to be paid on the Amendment No. 1 Effective Date. Substantially simultaneous with effectiveness, (i) the Term Lenders (including all Cashless Option Lenders but excluding the Additional Term B-1 Lender in its capacity as such) under the existing Credit Agreement shall have executed a counterpart been paid (x) all accrued principal (other than the principal amount of this Amendment;Rollover Domestic Term Loans) and interest on their Term Loans to, but not including, the Amendment No. 1 Effective Date and (y) the prepayment premium pursuant to Section 2.09(a)(iii) of the Credit Agreement and (ii) the Revolving Lenders under the existing Credit Agreement shall have been paid all accrued fees on their Revolving Commitments to, but not including, the Amendment No. 1 Effective Date.
(bf) the The representations and warranties of the Borrowers (x) contained and each other Loan Party set forth in Section 3 hereof Article III of the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Datedate hereof; provided that that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and dates.
(yg) set forth in the Credit Agreement are true and correct on and as As of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and or be continuing;.
(dh) the The Administrative Agent (or its counsel) shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and Note executed by its Secretary the applicable Borrower or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, Borrowers for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent Lender that requests such a Note at least five (5) two Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1
Appears in 1 contract
Sources: Amendment No. 1 (Genpact LTD)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 3 Effective Date”) when each of the following conditions shall have been satisfied:
(ia) the Borrowers The Administrative Agent (or its counsel) shall have executed and delivered received counterparts of this Amendment to signed by the Administrative AgentParent Borrower, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to U.S. Borrower, the Administrative Agent and (iii) Guarantors, the Administrative Agent and the Multicurrency Incremental Term B-4 Dollar Lenders.
(b) The Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers received (x) contained the legal opinion of Ropes & Gray LLP, counsel to the Loan Parties and (y) the legal opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Blount, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Loan Parties, in Section 3 hereof shall be true and correct in all material respects on and each case, dated as of the Amendment No. 1 3 Effective Date; provided that Date and in form and substance reasonably satisfactory to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);Administrative Agent.
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate copies of each Organization Document for the Parent Borrower, the U.S. Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 1 3 Effective Date or a recent date prior thereto; (ii) signature and executed by its Secretary or Assistant Secretaryincumbency certificates of the officers of the Parent Borrower, which shall the U.S. Borrower and each Guarantor executing this Amendment; (Aiii) certify the resolutions of its the Board of Directors or similar governing body of the Parent Borrower, the U.S. Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment, (B) identify by name Amendment and title and bear the signatures certified as of the Financial Officers Amendment No. 3 Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and any other officers of such Borrower authorized to sign this Amendment, effect without modification or amendment and (Civ) contain appropriate attachmentsif available, including a good standing certificate from the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority applicable Governmental Authority of the Parent Borrower’s, the U.S. Borrower’s and each Guarantor’s jurisdiction of incorporation, organization of such Borrower or formation, each dated a recent date prior to the Amendment No. 3 Effective Date.
(d) The Administrative Agent, the Amendment No. 3 Lead Arrangers and a true and correct copy of its bylaws (or a confirmation that there the Amendment No. 3 Co-Documentation Agents shall have been no changes to such documents since those that were delivered paid all fees payable to the Administrative Agent Agent, the Amendment No. 3 Lead Arrangers and the Amendment No. 3 Co-Documentation Agents, respectively, on the Second Amendment No. 3 Effective Date)Date and, and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by to the Administrative Agent extent invoiced at least five two (52) Business Days prior to the Amendment No. 1 3 Effective Date;
Date (e) or as otherwise reasonably agreed by the Borrowers shall pay all reasonable and documented Parent Borrower), out-of-pocket expenses of required to be paid by the Administrative Agent incurred Parent Borrower in connection with this Amendment, including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel in accordance with Section 10.04 of the Existing Credit Agreement.
(e) The Administrative Agent shall have received an officer’s certificate from the Parent Borrower in form and substance reasonably satisfactory to the Administrative Agent); andAgent as to satisfaction of the conditions set forth in clauses (j) and (k) of this Section 4.
(f) To the Borrower shall pay all reasonable fees and expenses due extent requested at least three (3) Business Days prior to the Amendment No. 1 Arranger 3 Effective Date (includingor as otherwise reasonably agreed by the Parent Borrower), without limitationthe Administrative Agent shall have received a Note executed by the Parent Borrower in favor of each Incremental Term B-4 Dollar Lender requesting a Note, fees and reasonable out-of-pocket expenses of counsel if any.
(g) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-4 Dollar Loans no later than 12:00 p.m. on the Business Day that is three (3) Business Days prior to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 13
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied:
(ia) the Borrowers The Administrative Agent (or its counsel) shall have executed and delivered received counterparts of this Amendment to signed by the Parent Borrower, the U.S. Borrower, the Guarantors, the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Incremental Term A-2 Dollar Lenders.
(b) The Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers received (x) contained in Section 3 hereof shall be true and correct in all material respects on and as the legal opinion of the Amendment No. 1 Effective Date; provided that Ropes & ▇▇▇▇ LLP, counsel to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates Loan Parties and (y) set forth the legal opinion of Smith, Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Loan Parties, in the Credit Agreement are true and correct on and each case, dated as of the Amendment No. 1 Effective Date and in all material respects with form and substance reasonably satisfactory to the same effect Administrative Agent.
(c) The Administrative Agent shall have received (i) copies of each Organization Document for the Parent Borrower, the U.S. Borrower and each Guarantor, as though made on applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 1 Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of the Parent Borrower, the U.S. Borrower and each Guarantor executing this Amendment; (iii) resolutions of the Board of Directors or similar governing body of the Parent Borrower, the U.S. Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made secretary, an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (iv) if available, a good standing certificate from the applicable Governmental Authority of the Parent Borrower’s, the U.S. Borrower’s and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a specified recent date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;the Amendment No. 1 Effective Date.
(d) The Administrative Agent and the Amendment No. 1 Lead Arrangers shall have been paid all fees payable to the Administrative Agent shall have received (i) a certificate of each Borrowerand the Amendment No. 1 Lead Arrangers, dated respectively, on the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretaryand, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent extent invoiced at least five two (52) Business Days prior to the Amendment No. 1 Effective Date;
Date (e) or as otherwise reasonably agreed by the Borrowers shall pay all reasonable and documented Parent Borrower), out-of-pocket expenses of required to be paid by the Administrative Agent incurred Parent Borrower in connection with this Amendment, including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to in accordance with Section 10.04 of the Administrative Agent); andExisting Credit Agreement.
(fe) the Borrower shall pay all reasonable fees and expenses due Prior to or substantially concurrently with the Amendment No. 1 Arranger (includingEffective Date, without limitationthe Borrower shall have paid an upfront fee to JPMorgan, fees and reasonable out-of-pocket expenses for the ratable account of counsel the Incremental Term A-2 Dollar Lenders, equal to 0.25% multiplied by the Amendment No. 1 Arranger) required to be paid aggregate principal amount of Incremental Term A-2 Dollar Loans funded by such Incremental Term A-2 Dollar Lenders on the Amendment No. 1
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 3 Effective Date”) when each of the following conditions shall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received (i) the Borrowers shall have executed and delivered counterparts of this Amendment to signed by the Borrowers, the Guarantors, the Administrative Agent, the L/C Issuer, the Swing Line Lender and the Incremental Revolving Credit Lenders and (ii) the Required Lenders shall have Swiss Reaffirmation duly executed and delivered counterparts of this Amendment to by the Administrative Agent and Swiss Guarantors.
(iiib) the Administrative Agent and the Multicurrency The Administrative Agent shall have executed a counterpart of this Amendment;
received (bw) the representations and warranties legal opinion of Ropes & ▇▇▇▇ LLP, counsel to the Borrowers Loan Parties, (x) contained the legal opinion of Smith, Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Loan Parties, (y) the legal opinion of ▇▇▇▇ & Staehelin, Swiss counsel for the Amendment No. 3 Lead Arranger, and (z) the legal opinion of Nagashima Ohno & Tsunematsu, Japanese counsel for the Loan Parties, in Section 3 hereof shall be true and correct in all material respects on and each case, dated as of the Amendment No. 1 3 Effective Date; provided that Date and in form and substance reasonably satisfactory to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);Administrative Agent.
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate copies of each BorrowerOrganization Document for each Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 1 3 Effective Date or a recent date prior thereto; (ii) signature and executed by its Secretary or Assistant Secretary, which shall incumbency certificates of the officers of each Borrower and each Guarantor executing this Amendment; (Aiii) certify the resolutions of its the Board of Directors or similar governing body of each Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment, (B) identify by name Amendment and title and bear the signatures certified as of the Financial Officers Amendment No. 3 Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and any other officers of such Borrower authorized to sign this Amendment, effect without modification or amendment and (Civ) contain appropriate attachmentsif available, including a good standing certificate from the certificate or articles applicable Governmental Authority of incorporation or organization of such Borrower certified by the relevant authority of the each Borrower’s and each Guarantor’s jurisdiction of incorporation, organization of such Borrower or formation, each dated a recent date prior to the Amendment No. 3 Effective Date.
(d) The Administrative Agent and a true and correct copy of its bylaws (or a confirmation that there the Amendment No. 3 Lead Arranger shall have been no changes to such documents since those that were delivered paid all fees payable to the Administrative Agent and the Amendment No. 3 Lead Arranger, respectively, on the Second Amendment No. 3 Effective Date)Date and, and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by to the Administrative Agent extent invoiced at least five three (53) Business Days prior to the Amendment No. 1 3 Effective Date;
Date (e) or as otherwise reasonably agreed by the Borrowers shall pay all reasonable and documented Parent Borrower), out-of-pocket expenses of required to be paid by the Administrative Agent incurred Parent Borrower in connection with this Amendment, including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel in accordance with Section 10.04 of the Existing Credit Agreement.
(e) The Administrative Agent shall have received an officer’s certificate with respect to the Borrowers and the Guarantors in form and substance reasonably satisfactory to the Administrative Agent); andAgent as to satisfaction of the conditions set forth in clauses (j) and (k) of this Section 4.
(f) To the Borrower shall pay all reasonable fees and expenses due extent requested at least three (3) Business Days prior to the Amendment No. 1 Arranger 3 Effective Date (includingor as otherwise reasonably agreed by the Parent Borrower), without limitationthe Administrative Agent shall have received a Note executed by the applicable Borrower in favor of each Incremental Revolving Credit Lender requesting a Note, fees and reasonable out-of-pocket expenses if any.
(g) The Administrative Agent shall have received for the account of counsel each Incremental Revolving Credit Lender a fee payable in Dollars equal to 0.25% of the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1aggregate
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become be effective as of the first date (such date being referred to December 7, 1999, so long as the “Amendment No. 1 Effective Date”) when each of the following conditions precedent shall have been satisfied:
: (a) the Administrative Agent shall receive counterparts of (i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, and (ii) the Waiver and Fifth Amendment to Amended and Restated Credit Agreement, each executed by the Required Lenders shall have executed (as defined in the Intercreditor Agreement) and delivered counterparts of this Amendment to the Administrative Agent Borrower and acknowledged by each Guarantor; (iiib) the Administrative Agent and shall receive counterparts of the Multicurrency First Amendment to Intercreditor Agreement, executed by the Required Lenders; (c) the Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties receive counterparts of the Borrowers (x) contained in Section 3 hereof shall be true Third Amendment to Promissory Note, executed by the Borrower and correct in all material respects on and as Bank of America, N.A., extending the maturity of the Amendment No. 1 Effective Date; provided that Overline Facility to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as end of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
Waiver Period; (d) the Administrative Agent shall have received receive a certified list of all real property owned by the Borrower and its Subsidiaries (other than any non-essential asset with a fair market value not exceeding $200,000) that is known to the Borrower on the date hereof to be either (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary unencumbered or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) subject to a certificate lien, the terms of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may would not be reasonably requested violated by the Administrative Agent at least five granting of a second lien without the prior written consent of the holder or holders (5or the trustee or agent of such holder or holders) Business Days prior to of the Amendment No. 1 Effective Date;
first lien; (e) the Borrowers representations and warranties set forth in Section 10 of this Amendment shall pay be true and correct; (f) all reasonable and documented out-of-pocket fees and expenses of the Administrative Agent incurred in connection with the preparationLoan Documents, execution and delivery of including this Amendment and the Additional Security Documents, including legal and other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal professional fees and expenses, expenses incurred on or prior to the actual date of this Amendment by Administrative Agent or any Lender, including, without limitation, the reasonable fees and documented out- of-pocket fees, disbursements and other charges expenses of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPand PricewaterhouseCoopers, counsel shall have been paid; (g) retainers in the amount of $50,000 for Winstead ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C. and $50,000 for PricewaterhouseCoopers shall have been paid; (h) the Administrative Agent shall receive the consolidated balance sheets of the Borrower and its Subsidiaries for the month of October 1999; and (i) the Administrative Agent shall receive, in form and substance satisfactory to the Administrative Agent); and
(f) Agent and its counsel, such other documents, certificates and instruments as the Borrower Administrative Agent shall pay all reasonable fees and expenses due to the Amendment Noreasonably require. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 112.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment and is subject to the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received counterparts of (i) the Borrowers shall have executed and delivered counterparts of this Amendment to duly executed by the Borrowers, the Lenders, the Issuing Bank, the Swingline Lender and the Administrative Agent, Agent and (ii) the Required Lenders Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have executed and delivered counterparts of this Amendment received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the effective date of this Amendment) of (iiii) ▇▇▇▇▇ Day, counsel for the Loan Parties other than the Dutch Borrower and (ii) ▇▇▇▇▇ Day, counsel for the Dutch Borrower, each in form and substance reasonably satisfactory to the Administrative Agent and, in each case, covering such matters relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of this Amendment and the Transactions and any other legal matters relating to such Loan Parties, the Loan Documents, this Amendment or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and the Multicurrency its counsel.
(d) The Administrative Agent shall have executed received a counterpart certificate, dated the effective date of this Amendment;
(b) , signed by the representations and warranties President, a Vice President or a Financial Officer of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier dateCompany, they shall be true and correct in all material respects as of such earlier date; providedcertifying that, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event the Borrowers are in compliance with paragraphs (a) and (b) of Default Section 4.02 of the Credit Agreement.
(e) The Administrative Agent shall have occurred received, for the account of each Lender party hereto that delivers its executed signature page to this Amendment by no later than the date and be continuing;time specified by the Administrative Agent, an upfront fee in an amount equal to the amount previously disclosed to the Lenders.
(df) the The Administrative Agent shall have received (i) a certificate of each Borrower, dated all fees and other amounts due and payable on or prior to the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance date of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendmentincluding, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date)extent invoiced, and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses payment and/or reimbursement of the Administrative Agent incurred in connection with the preparation, execution Agent’s and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and its Affiliates’ reasonable out-of-pocket fees and expenses (including, to the extent invoiced, reasonable fees, charges and disbursements of counsel for the Administrative Agent) in connection with this Amendment and the other Loan Documents.
(g) The Administrative Agent shall have made such reallocations of each Lender’s Applicable Percentage of the Revolving Credit Exposure under the Credit Agreement as are necessary in order that the Revolving Credit Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of the Amendment NoRevolving Credit Exposure under the Credit Agreement as amended hereby. 1 Arranger) required The Borrowers hereby agree to be paid compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans and the reallocation described in this clause (g), in each case on the Amendment No. 1terms and in the manner set forth in Section 2.16 of the Credit Agreement.
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Sources: Credit Agreement (MATERION Corp)
Conditions of Effectiveness. This The effectiveness of this Amendment and is subject to the amendment satisfaction or waiver of the Credit Agreement as set forth in Section 1 hereof shall become effective as following conditions precedent (the date of the first date (such date satisfaction or waiver being referred to as the “Amendment No. 1 Effective Date”):
(a) when each of the following conditions Administrative Agent shall have been satisfied:
(i) the Borrowers shall have executed and delivered received copies of counterparts of this Amendment to duly executed by the Administrative AgentBorrower, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to Parent Guarantor, the Administrative Agent and (iii) each of the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentLenders;
(b) the representations and warranties Administrative Agent shall have received (i) a favorable opinion of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, New York counsel to the extent that such representations Borrower and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates the Parent Guarantor and (yii) set forth in a favorable opinion of B▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to the Credit Agreement are true Borrower and correct on the Parent Guarantor, each addressed to the Administrative Agent and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)Lenders;
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Administrative Agent may reasonably require evidencing the identity, authority and be continuingcapacity of each Responsible Officer authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents;
(d) the Administrative Agent shall have received the certificate or articles of incorporation or formation, articles of organization, or other comparable organizational instrument of the Parent Guarantor and the Borrower to be filed with the State Department of Assessments and Taxation of Maryland;
(e) the Administrative Agent shall have received copies certified by a Responsible Officer of each such Person of (i) a certificate the by-laws or operating agreement (or the equivalent governing documents) of each Borrower, dated the Amendment No. 1 Effective Date Parent Guarantor and executed the Borrower and (ii) all necessary resolutions or other action taken by its Secretary or Assistant Secretary, which shall (A) certify the resolutions board of its Board directors of Directors authorizing the Parent Guarantor to authorize the execution, delivery and performance of this Amendment, Amendment by the Parent Guarantor and the Borrower;
(Bf) identify by name the Administrative Agent shall have received such documents and title and bear certifications as the signatures Administrative Agent may reasonably require to evidence that each of the Financial Officers Borrower and the Parent Guarantor is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(g) the Administrative Agent shall have received a certificate, duly executed by a Responsible Officer, certifying that (i) the Merger and the Conversion has occurred or shall occur substantially simultaneously with the effectiveness of this Amendment and attaching a fully executed copy of the Merger Agreement; (ii) the Parent Guarantor and the Borrower have received all approvals, consents and waivers, and have made or given all necessary filings and notices as shall be required to consummate the Reorganization, the Merger, the Conversion and the other transactions contemplated hereby, which do not and will not as of the Amendment No. 1 Effective Date after giving effect to the consummation of the Merger and the Conversion (a) contravene the terms of any other officers of such Borrower authorized Loan Party’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to sign this Amendmentbe made under (i) any Contractual Obligation to which such Loan Party is party or affecting such Loan Party or the properties of such Loan Party or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject; or (c) violate any Law; except in each case referred to in subclause (b) or (c), to the extent such conflict, breach, contravention or violation, or creation of any such Lien or required payment, could not reasonably be expected to have a Material Adverse Effect; and (Ciii) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority as of the jurisdiction Amendment No. 1 Effective Date, immediately following the Reorganization, the Merger, the Conversion and the other transactions contemplated hereby, the Borrower shall be a Wholly-Owned Subsidiary of organization of such the Parent Guarantor;
(h) the Borrower and a true and correct copy of its bylaws (or a confirmation that there the Parent Guarantor shall have been no changes to such documents since those that were delivered provided to the Administrative Agent on and the Second Amendment Effective Date), applicable Lender the documentation and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be information reasonably requested in writing by the Administrative Agent or such Lender at least ten Business Days prior to the Amendment No. 1 Effective Date that satisfies all requirements of regulatory authorities applicable to such Lender and such Lender’s internal policies and procedures in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in each case at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(ei) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket feesextent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel such Person shall have delivered to the Administrative Agent); and
, and any Lender reasonably requesting, in writing at least ten (f10) the Borrower shall pay all reasonable fees and expenses due Business Days prior to the Amendment No. 1 Arranger (includingEffective Date, without limitationthe same, fees and reasonable out-of-pocket expenses of counsel a Beneficial Ownership Certification in relation to the Borrower, in each case at least five Business Days prior to the Amendment No. 1 ArrangerEffective Date; and
(j) required the Administrative Agent shall have received payment of all fees and expenses (including fees and expenses of counsel for the Administrative Agent) due and payable in connection with this Amendment; provided that invoices for such fees and expenses have been presented to be paid on the Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the Amendment No. 11 Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 7 Effective Date”, which date is November 30, 2016) when each of the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment, duly executed and delivered by (i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative AgentBorrower, (ii) Holdings, (iii) the MLP, (iv) Consenting Lenders constituting the Required Lenders and (v) the Administrative Agent.
(b) The Administrative Agent shall have executed received, on behalf of itself and delivered counterparts the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of this the Amendment No. 7 Effective Date and addressed to the Administrative Agent and (iii) each of the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Multicurrency Agent.
(c) The Administrative Agent shall have executed received (i) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a counterpart Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the Amendment No. 7 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 3(d) and (f) of this Amendment;.
(bd) the The representations and warranties of the Borrowers (x) Borrower and each other Credit Party contained in Section 3 hereof 8 of the Credit Agreement (as amended hereby) or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 1 7 Effective Date; provided that , except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;.
(e) Payment by the Borrowers shall pay Borrower of all reasonable fees and documented expenses due to the Administrative Agent, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses of (including the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and.
(f) After giving effect to this Amendment, no Default or Event of Default exists, or would result from the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses effectiveness of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1this Amendment.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment and shall be subject to the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each satisfaction of the following conditions precedent:
(a) Agent shall have been satisfiedreceived:
(i) the Borrowers shall have this Amendment, executed and delivered counterparts of this Amendment to the Administrative by Agent, the Lenders and ▇▇▇▇▇▇▇▇; ACTIVE/129357222
(ii) certified copy of resolutions of ▇▇▇▇▇▇▇▇’s board of directors evidencing approval of the Required Lenders shall have executed Bridge Loan Advances and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of other transactions evidenced by this Amendment;
(biii) an Advance Request for the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though Tranche II Advance made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested duly executed by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇’s Chief Executive Officer or Chief Operating Officer;
(iv) a current completed certificate entitled “Perfection Certificate” delivered by Borrower to Agent, signed by ▇▇▇ & ▇▇▇▇▇▇▇ LLP(the “Updated Perfection Certificate”);
(v) certified copies of the Certificate of Incorporation and the Bylaws, counsel as amended (if applicable) through the Second Amendment Effective Date, of Borrower;
(vi) a certificate of good standing for Borrower from its state of incorporation and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified would have a Material Adverse Effect;
(b) Borrower shall have paid:
(i) a non-refundable amendment fee, fully earned as of the Second Amendment Effective Date, in an amount equal to One Hundred Fifty Thousand Dollars ($150,000);
(ii) the Facility Charge, applicable to the Administrative AgentTranche II Advance made on the Second Amendment Effective Date, in an amount equal to Fifty Thousand Dollars ($50,000); and
(fiii) the Borrower shall pay all reasonable fees invoiced costs and expenses then due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1in accordance with Section 6(d).
Appears in 1 contract
Sources: Loan and Security Agreement (Akero Therapeutics, Inc.)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of on the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when that each of the following conditions is met or waived (the “Amendment Effective Date”):
(a) The Administrative Agent shall have been satisfied:
(i) the Borrowers shall have executed and delivered received counterparts of this Amendment to the Administrative Agentexecuted by (i) Holdings, (ii) the Borrowers, (iii) solely with respect to the consent set forth in Section 2, the Required Term A Lenders shall have executed and delivered counterparts (iv) with respect to each provision of this Amendment to other than Section 2, each Revolving Lender and each Term A Lender (the Administrative Agent and Lenders described in clauses (iii) and (iv), collectively, the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;“Third Amendment Lenders”).
(b) As of the Amendment Effective Date, immediately before and after giving effect to this Amendment, the representations and warranties of each Loan Party set forth in the Borrowers (x) contained in Section 3 hereof Loan Documents shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date with the same effect as though made on and as of the Amendment Effective Date; provided that that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made or on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified earlier date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);as the case may be.
(c) prior to As of the Amendment Effective Date, immediately before and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;.
(d) The Third Amendment Lenders shall have received a certificate of a Responsible Officer of Holdings and each of the Borrower Parties dated the Amendment Effective Date, certifying compliance with clauses (b) and (c) above.
(e) The Administrative Agent shall have received received, in immediately available funds, payment or reimbursement of all reasonable and documented or invoiced out-of-pocket expenses (iincluding reasonable fees, charges and disbursements of counsel) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed required to be reimbursed or paid by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered Loan Party under any Loan Document to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent extent invoiced at least five (5) two Business Days prior to the Amendment No. 1 Effective Date;.
(ef) The Administrative Agent and the Borrowers Third Amendment Lenders shall pay all reasonable and documented out-of-pocket expenses of have received written opinions (addressed to the Administrative Agent, the Collateral Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments Third Amendment Lenders and documents to be delivered hereunder, if any dated the Amendment Effective Date) of (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties, (ii) ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Loan Parties and (iii) Loyens & Loeff, Luxembourg counsel for the Loan Parties.
(g) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Borrower Party and Holdings certified, to the extent applicable, as of a recent date by the applicable Governmental Authority; provided that such documents shall not be required to be delivered if the Borrower Parties and Holdings provide certifications that the applicable Organization Documents delivered to the Administrative Agent)Agent in connection with the Original Credit Agreement remain in full force and effect and have not been amended, modified, revoked or rescinded since the date of delivery, (ii) signature and incumbency certificates of the Responsible Officers of each Borrower Party and Holdings executing the Loan Documents to which it is a party; and
(f) the Borrower provided that such incumbency certificates shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) not be required to be paid on delivered if the Borrower Parties and Holdings provide certifications that the applicable incumbency certificates delivered to the Administrative Agent in connection with the Original Credit Agreement remain true and correct since the date of delivery, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Borrower Party and Holdings approving and authorizing the execution, delivery and performance of this Amendment, certified as of the Amendment No. 1Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment and (iv) a good standing certificate (to the extent such concept exists and delivery is customary in the applicable jurisdiction) from the applicable Governmental Authority of each Borrower Party and Holdings’ jurisdiction of incorporation, organization or formation.
Appears in 1 contract
Sources: Third Amendment (Broadcom LTD)
Conditions of Effectiveness. This The effectiveness of this Amendment and 41112.00012 #93392510v2 on the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 2 Effective Date”Date is subject to the satisfaction (or waiver by each of the Existing Lenders) when each of the following conditions shall have been satisfiedprecedent:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(da) the Administrative Agent shall have received (i) a certificate counterparts of each this Amendment duly executed by the Borrower, the Guarantors party hereto and each of the Existing Lenders and acknowledged by the Administrative Agent;
(b) the Administrative Agent shall have received an executed copy of that certain ABL Intercreditor Agreement dated as of the Amendment No. 1 2 Effective Date, between Administrative Agent, the ABL Agent, the UST Tranche A Agent, the UST Tranche B Agent and the Loan Parties, in form and substance reasonably satisfactory to Administrative Agent and the Existing Lenders;
(c) the Administrative Agent shall have received an executed copy of that certain Amendment No. 6 to the ABL Credit Agreement dated as of the date hereof between the Loan Parties party thereto, the lenders party thereto and the ABL Agent, in form and substance reasonably satisfactory to Agent and the Existing Lenders;
(i) the Administrative Agent shall have received executed copies of (x) the UST Tranche A Credit Agreement dated as of the Amendment No. 2 Effective Date, between the Borrower, the other Subsidiaries of the Borrower party thereto, the lenders party thereto and the UST Tranche A Agent and (y) the UST Tranche B Credit Agreement dated as of the Amendment No. 2 Effective Date, between the Borrower, the other Subsidiaries of the Borrower party thereto, the lenders party thereto and the UST Tranche B Agent, each in form and substance reasonably satisfactory to Agent and the Existing Lenders and (ii) the conditions precedent set forth in Section 4.01 of each of the UST Tranche A Credit Agreement and the UST Tranche B Credit Agreement shall have been satisfied;
(e) receipt by the Administrative Agent of a certificate executed by the Secretary (or other equivalent officer, partner or manager) of each Loan Party dated as of the Amendment No. 2 Effective Date certifying: (i) as true and executed by its Secretary correct a copy of resolutions in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors (or Assistant Secretaryother equivalent governing body, which shall (Amember or partner) certify the resolutions of its Board of Directors each Loan Party approving and authorizing the execution, delivery and performance by such Loan Party of this AmendmentAmendment and all documents, instruments and agreements executed and/or delivered in connection herewith (if any) and of the transactions contemplated herein and therein, (Bii) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a as true and correct and in full force and effect, without any amendment except as shown, a copy of its bylaws (the Organization Documents of each Loan Party, or a confirmation that there have been no changes amendments, supplements, or other modifications to such documents Loan Party’s Organizational Documents since those the Restatement Effective Date and that were the copies of such Loan Party’s Organizational Documents delivered to the Administrative Agent on such date as a part of the Second Amendment Effective Date“secretary’s certificate” delivered by such Loan Party are true, correct and complete copies of such Organizational Documents as currently in full force and effect, (iii) if available, a true and correct a copy of a good standing certificate/certificate of status for each Loan Party certified by the applicable Governmental Authority of such Loan Party’s jurisdiction of incorporation, organization or formation dated a recent date prior to the date hereof (except for those delivered pursuant to Section 4(a) below), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(eiv) the Borrowers shall pay all reasonable names and documented out#4834-of5000-pocket expenses 5441.9 signatures of the Administrative Agent incurred in connection with the preparation, execution officers of such Loan Party authorized to execute and delivery of deliver this Amendment and the other all documents, instruments and documents to be agreements executed and/or delivered hereunder, in connection herewith (if any (but limited, in the case any) on behalf of legal fees and expenses, such Loan Party pursuant to the actual reasonable resolutions referenced in clause (i) above (and documented out- of-pocket feessuch certificate shall be countersigned by another officer of such Loan Party certifying the name, disbursements office and signature of the Secretary (or other charges equivalent officer, partner or manager) of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agentsuch Loan Party giving such certificate); and
(f) no Default or Event of Default has occurred and is continuing, or would result from the Borrower shall pay all reasonable fees and expenses due to execution of this Amendment or consummation of the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1transactions contemplated hereunder.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of the Consents, this Amendment and the amendment making of the Credit Agreement as set forth in Section 1 hereof shall become effective as of Term A-3 Loans are subject to the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each satisfaction or waiver of the following conditions precedent (the date of such satisfaction or waiver being the “Second Amendment Effective Date”):
(a) the Administrative Agent shall have been satisfied:
(i) the Borrowers shall have executed and delivered received copies of counterparts of this Amendment to duly executed by each Loan Party, the Administrative Agent, (ii) the Required Lenders shall have executed (as defined in the Credit Agreement and delivered counterparts of as determined immediately prior to giving effect to this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart Term Loan A-3 Facility) and each of this Amendmentthe Term A-3 Lenders;
(b) the representations and warranties Administrative Agent shall have received (i) an opinion of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, New York counsel to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates Loan Parties and (yii) set forth in an opinion of B▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to the Credit Agreement are true Loan Parties, each addressed to the Administrative Agent and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)Lenders;
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default the Administrative Agent shall have occurred received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Administrative Agent may reasonably require evidencing the identity, authority and be continuingcapacity of each Responsible Officer authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents;
(d) the Administrative Agent shall have received copies, certified by a Responsible Officer of each Loan Party, of (i) a the certificate or articles of each Borrowerincorporation or formation, dated articles of organization, or other comparable organizational instrument of such Loan Party, (ii) the Amendment No. 1 Effective Date by-laws or operating agreement (or the equivalent governing documents) of such Loan Party and executed (iii) all necessary resolutions or other action taken by its Secretary or Assistant Secretary, which shall (A) certify the resolutions board of its Board directors of Directors authorizing such Loan Party to authorize the execution, delivery and performance of this Amendment, Amendment by such Loan Party;
(Be) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(f) the Administrative Agent shall have received a certificate executed by a Responsible Officer of the Borrower certifying that, as of the Second Amendment Effective Date), (i) no Default or Event of Default exists, and, immediately after giving effect to the Term Loan A-3 Facility, no Default or Event of Default exists and (ii) a certificate the Specified Representations are true and correct in all material respects (or in all respects in the case of compliance/status/good standingany Specified Representation qualified by materiality or Material Adverse Effect), as applicableexcept to the extent that such Specified Representations specifically refer to an earlier date, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business case they were true and correct in all material respects (or in all respects in the case of any Specified Representation qualified by materiality or Material Adverse Effect) as may be of such earlier date;
(g) the Borrower shall have provided to the Administrative Agent and the applicable Lender the documentation and other information reasonably requested in writing by the Administrative Agent or such Lender at least ten (10) Business Days prior to the Second Amendment Effective Date that is required by regulatory authorities applicable to such Lender under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in each case at least five (5) Business Days prior to the Second Amendment No. 1 Effective Date;
(eh) to the Borrowers extent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall pay all reasonable and documented out-of-pocket expenses of have delivered to the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limitedLender, in the each case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel extent reasonably requested by the Administrative Agent or such Lender in writing at least ten (10) Business Days prior to the Administrative Agent)Second Amendment Effective Date, a Beneficial Ownership Certification in relation to the Borrower, in each case at least five (5) Business Days prior to the Second Amendment Effective Date; and
(fi) the Borrower Administrative Agent shall pay have received payment of all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, including fees and reasonable out-of-pocket expenses of counsel to for the Amendment No. 1 ArrangerAdministrative Agent) required to be paid by the Borrower to the Administrative Agent or any Term A-3 Lender on or prior to the Second Amendment No. Effective Date in connection with this Amendment; provided that invoices for such fees and expenses have been presented to the Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the Second Amendment Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “First Amendment No. 1 Effective Date”) when on which, and only if, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Borrowers shall have executed and delivered (x) counterparts of this Amendment to executed by the Borrower, the Administrative Agent, (ii) the Agent and those Lenders comprising Required Lenders shall have executed and delivered counterparts or, as to any of this Amendment such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (iiiy) the Administrative Agent consent attached hereto (the “Consent”) executed by each of the Guarantors.
(ii) A certificate of the Secretary or an Assistant Secretary of (a) the Borrower certifying the names and true signatures of the Multicurrency Administrative Agent shall have executed a counterpart officers of the Borrower authorized to sign this Amendment;Amendment and (b) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent.
(b) the The representations and warranties set forth in each of the Borrowers (x) contained in Section 3 hereof Loan Documents shall be true and correct in all material respects on and as of the First Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date such date (it being understood except for any such representation and agreed that any representation or warranty which that, by its terms is made as of terms, refers to a specified specific date shall be be true and correct other than the First Amendment Effective Date, in all material respects only which case as of such specified specific date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);.
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default No event shall have occurred and be continuing;, or shall result from the effectiveness of this Amendment, that constitutes a Default or an Event of Default.
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery The effectiveness of this Amendment and is conditioned upon the other instruments and documents to be delivered hereunder, if any (but limited, in accuracy of the case of legal fees and expenses, factual matters described herein. This Amendment is subject to the actual reasonable and documented out- of-pocket fees, disbursements and other charges provisions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to Section 9.01 of the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Third Amendment (including the amendments contained in SECTION 1 and agreements contained in SECTION 2) are subject to the satisfaction (or written waiver) of the following conditions (the date of satisfaction of such conditions being referred to herein as the “Third Amendment Effective Date”):
(a) This Third Amendment and shall have been duly executed by the Borrowers, the Subsidiary Guarantors, the Required Lenders (with respect to the amendment of the Credit Agreement as set forth in Section 1 1(b) hereof only) and the Term Loan B Agent (which may include a copy transmitted by facsimile or other electronic method), and delivered to the Term Loan B Agent, and the Lenders under the Credit Agreement consisting of at least the Required Term B Lenders immediately prior to the Third Amendment Effective Date.
(b) Jefferies, as Repricing Arranger, shall become effective have received all fees due and payable under that certain Arranger Fee Letter, dated as of February 9, 2021, by and among the Borrowers and Jefferies (the “Third Amendment Fee Letter”).
(c) The Term Loan B Agent shall have received favorable legal opinions of (A) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties, (B) ▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., Nevada counsel to the Loan Parties, (C) ▇▇▇▇▇▇ and Calder, Cayman Islands counsel to the Loan Parties, and (D) DLA Piper Luxembourg S.à ▇.▇., Luxembourg counsel to the Loan Parties, with respect to the capacity of the Luxembourg Loan Parties to enter into the Loan Documents and subsistence of security interest, in each case in form and substance reasonably satisfactory to the Term Loan B Agent.
(d) The Term Loan B Agent shall have received a certificate signed by a Responsible Officer of the Borrowers as to the matters set forth in paragraphs (g) and (h) of this SECTION 3;
(e) The Term Loan B Agent shall have received (I) a certificate dated as of the first date Third Amendment Effective Date of the corporate secretary or an assistant or associate corporate secretary or director (or such date being referred other officer reasonably acceptable to as the “Amendment No. 1 Effective Date”Term Loan B Agent) when of each of the following conditions shall have been satisfied:
Loan Parties, in form and substance reasonably satisfactory to the Term Loan B Agent, certifying (i) that either (A) attached thereto is a true and complete and up to date copy of the Borrowers shall have executed articles or certificate of incorporation, memorandum and articles of association or other comparable organizational documents including any certificate on change of name and all amendments thereto of such Loan Party certified (other than in the case of any Loan Party that is a Cayman Islands exempted company) by the secretary of state (or comparable Governmental Authority) of its jurisdiction of organization (where applicable), and that the same has not been amended since the date of such certification or (B) the articles or certificate of incorporation or other comparable organizational documents of such Loan Party most recently delivered counterparts of this Amendment to the Administrative AgentTerm Loan B Agent have not been amended and are in full force and effect, (ii) that either (A) attached thereto is a true and complete copy of the Required Lenders shall have executed bylaws or comparable governing documents of such Loan Party, as then in effect and as in effect at all times without amendment of supersession from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate or (B) that the bylaws or comparable governing documents of such Loan Party most recently delivered counterparts of this Amendment to the Administrative Term Loan B Agent have not been amended and are in full force and effect and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Administrative Agent board of directors or other comparable governing body or bodies of such Loan Party and, if applicable all the holders of the issued shares of such Loan Party, authorizing the execution, delivery and performance of this Third Amendment and any related Loan Documents to which it is a party, which are in full force and effect without amendment or supersession as of the date of the certificate, and as to the incumbency and genuineness of the signature of each officer, director or other comparable authorized manager or attorney of such Loan Party, executing this Third Amendment or any of such other Loan Documents, and attaching all such copies of the documents described above together with, in the case of the Loan Parties incorporated in the Cayman Islands, copies of their internal registers of directors and officers and registers of mortgages and charges and (II) in respect of (i) any Luxembourg Loan Party, (ii) WHBL Luxembourg S.à ▇.▇., (iii) Herbalife Luxembourg Distribution S.à ▇.▇., (iv) HLF Luxembourg Distribution S.à ▇.▇. and (v) Herbalife Africa (together the “Luxembourg Entities” and each a “Luxembourg Entity”), a manager’s certificate dated as of the Third Amendment Effective Date signed by a manager of the relevant Luxembourg Entity, certifying the following items: (A) an up-to-date copy of the articles of association of the relevant Luxembourg Entity; (B) an electronic true and complete certified excerpt of the Luxembourg Companies Register pertaining to the relevant Luxembourg Entity dated as of the date of this Agreement; (C) an electronic true and complete certified certificate of non-registration of judgment (certificat de non-inscription d’une décision judiciaire) dated as of the date of this Agreement issued by the Luxembourg Companies Register and reflecting the situation no more than one Business Day prior to the date of this Agreement; (D) with respect to the Luxembourg Loan Parties only, true, complete and up-to-date board resolutions approving the entry by the relevant Luxembourg Loan Party into, among others, the Loan Documents; (E) the relevant Luxembourg Entity is not subject to nor, as applicable, does it meet or threaten to meet the criteria of bankruptcy (faillite), voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors or similar laws affecting the rights of creditors generally and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings; (F) (with respect to the Luxembourg Loan Parties only) a true and complete specimen of signatures for each of the managers or authorized signatories having executed for and on behalf of the relevant Luxembourg Loan Party the Loan Documents; (G) a certificate of the domiciliation agent or signed by a manager of the relevant Luxembourg Entity certifying, as the case may be, (i) due compliance by the relevant Luxembourg Entity with, and adherence to, the provisions of the Luxembourg Law dated 31 May 1999 concerning the domiciliation of companies, as amended, and the Multicurrency Administrative related circulars issued by the Commission de Surveillance du Secteur Financier or (ii) that the premises of the Luxembourg Entity are leased pursuant to a legal, valid and binding (and still in full force and effect) lease agreement and correspond to sufficient unshared office space, with a separate entrance and sufficient office equipment allowing it to effectively carry out its business activities.
(f) The Term Loan B Agent shall have executed received a counterpart certificate as of this Amendmenta recent date of the good standing of each of the Loan Parties (other than the Luxembourg Loan Parties) under the laws of its jurisdiction of organization, from the secretary of state (or comparable Governmental Authority) of such jurisdiction as well as corresponding bring-down good standing certificates dated as of the Third Amendment Effective Date, save that, no such bring-down good standing certificate is required for any Loan Party that is a Cayman Islands exempted company where the above recent date of the certificate of good standing initially provided is no earlier than 10 Business Days prior to the Third Amendment Effective Date;
(bg) No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(h) The representations and warranties of each Loan Party set forth in SECTION 5(b) of this Third Amendment are true and correct and the representations and warranties of the Borrowers each Loan Party set forth in SECTIONS 5(a) and (xc) contained in Section 3 hereof shall be of this Third Amendment are true and correct in all material respects on and as of the Third Amendment No. 1 Effective Date; provided that Date (immediately after giving effect to this Third Amendment) as if made on as of such date, except in the extent that case of any representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, furtherthat, in each case such materiality qualifier shall not be applicable to any representations or warranties that any representation and warranty that is already are qualified as to “materiality,” or modified by materiality or “Material Adverse Effect” or similar language ”;
(i) The Term Loan B Agent shall be true and correct have received a solvency certificate in all respects on such respective dates and (y) set forth in the form of Exhibit J of the Credit Agreement are true and correct on and as from a Responsible Officer of the Amendment No. 1 Effective Date in all material respects Parent with respect to the same effect as though made on and as solvency of the Amendment No. 1 Effective Date (it being understood Parent and agreed that any representation or warranty which by its terms is made as of Subsidiaries, on a specified date shall be be true and correct in all material respects only as of such specified dateconsolidated basis, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this the Third Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each is subject to the satisfaction of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers The Administrative Agent shall have executed and delivered received counterparts of this Amendment to duly executed by the Borrower, the Lenders and the Administrative Agent, .
(iib) the Required Lenders The Administrative Agent shall have executed and delivered counterparts of this Amendment received favorable written opinions (addressed to the Administrative Agent and (iii) the Administrative Agent Lenders and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of dated the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as ) of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower▇▇▇▇▇ ▇. ▇▇▇▇, dated the Amendment No. 1 Effective Date Executive Vice President, General Counsel and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers Company and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered acting as counsel to the Administrative Agent on the Second Amendment Effective Date), other Borrower and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel for the Borrower, each covering such matters relating to the Borrowers, this Amendment, the Credit Agreement as amended hereby and the Transactions as the Administrative Agent shall reasonably request (and the Borrower hereby requests such counsel to deliver such opinions).
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to (i) the organization, existence and good standing of each Borrower, (ii) the authorization of the Transactions and the validity of this Amendment and the Credit Agreement as amended hereby and (iii) any other legal matters relating to Borrowers, this Amendment and the Credit Agreement as amended hereby or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by the chief executive officer or the chief financial officer or the controller of the Company confirming (i) that the representations and warranties of the Borrowers set forth in Article 4 of the Credit Agreement (as such Article 4 is modified by this Amendment) are true and correct in all material respects (provided that any representation or warranty qualified by materiality or Material Adverse Effect shall be true and correct in all respects) as of the Amendment Effective Date except to the extent that any such representations and warranties expressly relate to an earlier date (including those contained in Sections 4.4(a), 4.4(b) and 4.8 of the Credit Agreement), in which case such representations and warranties shall have been true and correct in all material respects (provided that any representation or warranty qualified by materiality or Material Adverse Effect shall be true and correct in all respects) on and as of such earlier date and (ii) that there is no Default in existence as of the Amendment Effective Date.
(e) The Administrative Agent shall have received, for the account of each Lender party hereto that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent); and, an extension fee in an amount equal to the amount disclosed by the Borrowers to the Lenders in writing prior to the date hereof.
(f) The Administrative Agent shall have received payment of the Borrower shall pay all reasonable fees Administrative Agent’s and expenses due to the Amendment No. 1 Arranger (including, without limitation, its Affiliates’ fees and reasonable out-of-pocket costs and expenses (including the reasonable fees, charges and disbursements of Sidley Austin LLP, counsel to the Amendment No. 1 ArrangerAdministrative Agent) required to be paid on the Amendment No. 1in connection with this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Allstate Corp)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied:
(i) the Borrowers shall have executed and delivered counterparts The effectiveness of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that Date is subject to the extent that such representations satisfaction (or waiver by each of the Existing Lenders) of the following conditions precedent:
(a) the Administrative Agent shall have received counterparts of this Amendment duly executed by the Borrower, the Guarantors party hereto and warranties specifically refer to each of the Existing Lenders and acknowledged by the Administrative Agent;
(b) each Lender with an earlier date, they existing Delayed Draw Term Note shall be true and correct have received an amended Delayed Draw Term Note executed by the Borrower in all material respects as favor of such earlier date; providedLender;
(c) receipt by the Administrative Agent of a certificate executed by the Secretary (or other equivalent officer, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” partner or similar language shall be true and correct in all respects on such respective dates and (ymanager) set forth in the Credit Agreement are true and correct on and of each Loan Party dated as of the Amendment No. 1 Effective Date in all material respects with the same effect certifying: (i) as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct a copy of resolutions in all material respects only as of such specified date, form and that any representation or warranty which is subject substance reasonably satisfactory to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received Agent, of the board of directors (ior other equivalent governing body, member or partner) a certificate of each Borrower, dated the Amendment No. 1 Effective Date Loan Party approving and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance by such Loan Party of this AmendmentAmendment and all documents, instruments and agreements executed and/or delivered in connection herewith (if any) and of the transactions contemplated herein and therein, (Bii) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a as true and correct and in full force and effect, without any amendment except as shown, a copy of its bylaws the Organization Documents of each Loan Party (or a confirmation certification that there have has been no changes change to such documents since those that were delivered the Organization Documents for each Loan Party previously provided to the Administrative Agent on the Second Closing Date) and that the copies of such Loan Party’s Organizational Documents delivered to Administrative Agent on such date as a part of the “secretary’s certificate” delivered by such Loan Party are true, correct and complete copies of such Organizational Documents as currently in full force and effect, and (iii) (1) a certification that there has been no change to the names and signatures of the authorized officers previously provided to the Administrative Agent on the Closing Date or (2) the names and signatures of the officers of such Loan Party, in either case authorized to execute and deliver this Amendment Effective Dateand all documents, instruments and agreements executed and/or delivered in connection herewith (if any) on behalf of such Loan Party pursuant to the resolutions referenced in clause (i) above (and such certificate shall be countersigned by another officer of such Loan Party certifying the name, office and signature of the Secretary (or other equivalent officer, partner or manager) of such Loan Party giving such certificate);
(d) a final order of the Bankruptcy Court pursuant to Section 364 of the Bankruptcy Code approving this Amendment (the “Supplemental Final Order”)
(i) shall have been entered by the Bankruptcy Court and the Borrower shall have delivered to the Administrative Agent and the Lenders a true and complete copy of such order, and (ii) a certificate shall be in full force and effect and shall not (in whole or in part) have been reversed, modified, amended, stayed, appealed or vacated, or subject to stay pending appeal, or otherwise challenged or subject to any challenge, absent prior written consent of compliance/status/good standingthe Lenders (and, as applicable(x) with respect to any provisions that affect the rights or duties of the Administrative Agent, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five and (5y) Business Days prior with respect to any provisions that affect the Amendment No. 1 Effective Date;rights or duties of the B-2 Lenders, the B-2 Lenders); and
(e) the Borrowers The Borrower shall pay have paid all reasonable and documented out-of-pocket invoiced expenses of the Administrative Agent incurred and the Lenders in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limitedAmendment, in the case of legal fees and expenseseach case, to the actual reasonable and documented out- of-pocket feesextent reimbursable under the terms of the Credit Agreement, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1as amended hereby.
Appears in 1 contract
Sources: Junior Secured Super Priority Debtor in Possession Credit Agreement (Yellow Corp)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 2 Effective Date”) when each of the following conditions shall have been satisfied:
(ia) the Borrowers The Administrative Agent (or its counsel) shall have executed and delivered received counterparts of this Amendment signed by the Borrowers, the Guarantors, the Administrative Agent, each Term A-1 Dollar Lender, each Revolving Credit Lender and each Amendment No. 2 Increasing U.S. Revolving Credit Lender.
(b) The Administrative Agent shall have received (i) the legal opinion of Ropes & Gray LLP, counsel to the Loan Parties and (ii) the legal opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Blount, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Loan Parties, in each case, dated as of the Amendment No. 2 Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received (i) copies of each Organization Document for the Parent Borrower, the U.S. Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 2 Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the Required Lenders shall have executed officers of the Parent Borrower, the U.S. Borrower and delivered counterparts each Guarantor executing this Amendment; (iii) resolutions of the Board of Directors or similar governing body of the Parent Borrower, the U.S. Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Amendment No. 2 Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (iv) if available, a good standing certificate from the applicable Governmental Authority of the Parent Borrower’s, the U.S. Borrower’s and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Amendment No. 2 Effective Date.
(d) The Administrative Agent and the Amendment No. 2 Lead Arranger shall have been paid all fees payable to the Administrative Agent and the Amendment No. 2 Lead Arranger, respectively, on the Amendment No. 2 Effective Date and, to the extent invoiced at least two (iii2) Business Days prior to the Administrative Agent and Amendment No. 2 Effective Date (or as otherwise reasonably agreed by the Multicurrency Parent Borrower), out-of-pocket expenses required to be paid by the Parent Borrower in connection with this Amendment, including the Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in accordance with Section 10.04 of the Existing Credit Agreement.
(e) Prior to or substantially concurrently with the Amendment No. 2 Effective Date, the Parent Borrower shall have paid an upfront fee in Dollars to BofAS, for the ratable account of the Amendment No. 2 Increasing U.S. Revolving Credit Lenders, equal to 0.25% multiplied by the aggregate principal amount of Amendment No. 2 Incremental U.S. Revolving Credit Commitments committed by such Amendment No. 2 Increasing U.S. Revolving Credit Lenders on the Amendment No. 2 Effective Date.
(f) [Reserved].
(g) The Administrative Agent shall have executed a counterpart received an officer’s certificate from the Parent Borrower in form and substance reasonably satisfactory to the Administrative Agent as to satisfaction of the conditions set forth in clauses (k) and (l) of this Amendment;Section 4.
(bh) To the extent requested at least three (3) Business Days prior to the Amendment No. 2 Effective Date (or as otherwise reasonably agreed by the Parent Borrower), the Administrative Agent shall have received a Note executed by the U.S. Borrower in favor of each Amendment No. 2 Increasing U.S. Revolving Credit Lender requesting a Note, if any.
(i) The Administrative Agent shall have received a Solvency Certificate from a Responsible Officer of the Parent Borrower in substantially the form attached hereto as Annex B.
(j) At least three (3) Business Days prior to the Amendment No. 2 Effective Date, the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including a certification regarding beneficial ownership as required by the 31 C.F.R. § 1010.230), including the USA PATRIOT Act, that has been requested in writing at least ten (10) Business Days prior to the Amendment No. 2 Effective Date.
(k) The representations and warranties of each Loan Party set forth in Article V of the Borrowers (x) contained Existing Credit Agreement and in Section 3 hereof each other Credit Document shall be true and correct in all material respects on and as of the Amendment No. 1 2 Effective Date; provided that , except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates dates.
(l) Immediately after giving effect to this Amendment and (y) set forth in the Credit Agreement are true and correct on and as establishment of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 12
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment The obligations of the Lenders to make Loans (or to purchase participations in Swingline Loans) and of the Issuing Bank to issue Letters of Credit Agreement as set forth in Section 1 hereof hereunder SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT - Page 50 shall become effective as of on the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when on which each of the following conditions is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have been satisfiedreceived from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received reasonably satisfactory written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of New York counsel for the Credit Parties, covering such matters as the Required Lenders shall reasonably request. The Credit Parties hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of each Credit Party, stating that:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as Article III of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit this Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);Closing Date; and
(cii) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have event has occurred and be continuing;is continuing that constitutes a Default.
(de) the The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out‑of‑pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(if) a certificate of each Borrower, dated the Amendment No. 1 Effective Date All governmental and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing material third party approvals necessary in connection with the execution, delivery and performance of this Amendment, (B) identify by name Agreement shall have been obtained and title be in full force and bear effect. The Administrative Agent shall notify the signatures Borrower and the Lenders of the Financial Officers and any other officers of such Borrower authorized to sign this AmendmentClosing Date, and (C) contain appropriate attachments, including such notice shall be conclusive and binding. Without limiting the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority generality of the jurisdiction provisions of organization the third paragraph of such Borrower and Article IX, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to Lender unless the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower shall have received notice from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days such Lender prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Amendment The amendment and the amendment restatement of the Existing Credit Agreement as set forth in pursuant to Section 1 hereof of this Agreement shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Restatement Effective Date”) when on which each of the following conditions shall have been satisfied:
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the The Administrative Agent and (iiior its counsel) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) from each of the Borrowers, each Lender, each New Lender and the Departing Lender either a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance counterpart of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers Agreement signed on behalf of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate party or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered written evidence satisfactory to the Administrative Agent on the Second Amendment Effective Date), (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) a certificate duly executed copies of compliance/status/good standingthe Loan Documents and such other legal opinions, certificates, resolutions, documents, instruments and agreements in respect of the Loan Parties as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred have reasonably requested in connection with the preparationTransactions, execution all in form and delivery substance satisfactory to the Company and Administrative Agent and its counsel and as further described in the list of this Amendment closing documents attached as Exhibit E to the Restated Credit Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the other instruments and documents to be delivered hereunder, if any Lenders (but limited, in not the case Departing Lender) under the Restated Credit Agreement and dated the Restatement Effective Date) of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges each of (i) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Loan Parties, substantially in the form of Exhibit B-1 to the Restated Credit Agreement, (ii) ▇▇▇▇▇▇▇, Bermuda counsel for the Loan Parties, substantially in the form of Exhibit B-2 to the Restated Credit Agreement, (iii) Stibbe, Dutch counsel for the Loan Parties, substantially in the form of Exhibit B-3 to the Restated Credit Agreement, (iv) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPZurich, Swiss counsel for the Loan Parties, substantially in the form of Exhibit B-4 to the Restated Credit Agreement, (v) HWL Ebsworth, Australian counsel for the Loan Parties, substantially in the form of Exhibit B-5 to the Restated Credit Agreement, (vi) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Stirling Scales, Nova Scotia counsel for the Loan Parties, substantially in the form of Exhibit B-6 to the Restated Credit Agreement, (vii) ▇▇▇▇▇ Lovells, German counsel for the Loan Parties, substantially in the form of Exhibit B-7 to the Restated Credit Agreement, (viii) Macfarlanes, English counsel for the Loan Parties, substantially in the form of Exhibit B-8 to the Restated Credit Agreement, (ix) ▇▇▇▇▇▇ and Calder, Irish counsel for the Loan Parties, substantially in the form of Exhibit B-9 to the Restated Credit Agreement, (x) DunnCox, Jamaican counsel for the Loan Parties, substantially in the form of Exhibit B-10 to the Restated Credit Agreement, (xi) BonelliErede, Italian counsel for the Loan Parties, substantially in the form of Exhibit B-11 to the Restated Credit Agreement, and (xii) Blackadders, Scottish counsel for the Loan Parties, substantially in the form of Exhibit B-12 to the Restated Credit Agreement, and in each case covering such other matters relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative Agent shall have reasonably requested. The Company hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel have reasonably requested relating to the organization, existence and good standing of the initial Loan Parties, the authorization of the Transactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory to the Administrative AgentAgent and its counsel and as further described in the list of closing documents attached as Exhibit E to the Restated Credit Agreement.
(d) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Company, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received evidence satisfactory to it of the payment, prior to or simultaneously with the initial Loans under the Restated Credit Agreement, of all interest, fees and premiums, if any, on all loans and other extensions of credit outstanding under the Existing Credit Agreement (other than contingent indemnity obligations); and. If any LC Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon.
(f) The Administrative Agent shall have received (i) for the Borrower shall pay account of each Lender (including each New Lender but excluding the Departing Lender) that delivers its executed signature page to this Agreement by no later than the date and time specified by the Administrative Agent, an upfront fee in an amount equal to the applicable amount previously disclosed to the Lenders and (ii) all reasonable fees and expenses other amounts due and payable on or prior to the Amendment No. 1 Arranger (Restatement Effective Date, including, without limitationto the extent invoiced, fees and reasonable reimbursement or payment of all out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be reimbursed or paid on by the Amendment NoCompany under the Restated Credit Agreement. 1Upon the occurrence of the Restatement Effective Date, the Administrative Agent shall notify the Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Cimpress N.V.)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of on which the following conditions shall have been satisfied:satisfied (or waived):
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (iifollowed promptly by originals) unless otherwise specified in writing by the Required Lenders shall have Administrative Agent to the Borrower, each properly executed by an Authorized Officer of the applicable signing Loan Party, dated as of the Effective Date (except as set forth in clauses (iii)(B) and delivered counterparts of this Amendment (v) below), each in form and substance reasonably satisfactory to the Administrative Agent and (iii) its legal counsel:
i. counterparts of this Amendment duly executed by Holdings, the Borrower, each Subsidiary Guarantor and the Administrative Agent Agent;
ii. counterparts of this Amendment duly executed by the 2016 Incremental Term Facility Lenders identified on Schedule 1 hereto;
iii. a certificate of an Authorized Officer of each Loan Party that, after giving effect to this Amendment and the Multicurrency transactions contemplated hereby, (A) certifies and attaches the resolutions adopted by the board of directors (or equivalent governing body) of the applicable Loan Party approving or consenting to the 2016 Incremental Term Loan Commitments and the 2016 Incremental Term Loans and (B) attaching certificates, dated on or about the Effective Date, of the good standing of each Loan Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, and to the extent reasonably requested by the Administrative Agent shall have executed a counterpart of this AmendmentAgent, each other jurisdiction where such Loan Party is qualified to do business;
iv. a certificate of an Authorized Officer of the Borrower stating that, after giving effect to this Amendment and the transactions contemplated hereby, (bA) the representations and warranties made by each Loan Party set forth in Article III of the Borrowers (x) contained Credit Agreement and in Section 3 hereof shall be the other Loan Documents are true and correct in all material respects on and (or if qualified by materiality or reference to Material Adverse Effect, in all respects) with the same effect as of the Amendment No. 1 Effective Date; provided that if then made (unless expressly stated to the extent that such representations and warranties specifically refer relate to an earlier date, they shall be in which case such representations and warranties are true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates ) and (yB) set forth in no Default has occurred and is continuing or will result from this Amendment or the transactions contemplated hereby; and
v. a written notice from an Authorized Officer of the Borrower (together with any other information and documentation reasonably requested by the Administrative Agent) stating that the Acquisition is a “Limited Conditionality Acquisition”.
(b) all fees and expenses of the Administrative Agent that are required to be paid hereunder or pursuant to the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date shall have been paid in all material respects full in cash or will be paid in full in cash concurrently with the same effect as though made on and as effectiveness of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);this Amendment; and
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate of each Borrowerlegal opinion, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures as of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and the 2016 Incremental Term Facility Lenders and reasonably satisfactory to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1.
Appears in 1 contract
Sources: Credit Agreement (Consolidated Communications Holdings, Inc.)
Conditions of Effectiveness. This The effectiveness of this Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 3 Effective Date”) when and the obligations of each applicable Lender to increase (or in the case of each New Lender, to extend) its Revolving Commitment is subject to the satisfaction of the following conditions shall have been satisfiedprecedent:
(ia) the Borrowers Administrative Agent (or its counsel) shall have received executed and delivered counterparts of this Amendment signed by or on behalf of the Borrower, the Guarantors, each Lender (including each New Lender), each Issuing Lender and the Administrative Agent (which, subject to Section 10.8 of the Amended Credit Agreement, may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page);
(b) 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 and documented fees and expenses of legal counsel to the Administrative Agent) on or prior to the Amendment No. 3 Effective Date;
(c) the Administrative Agent shall have received, for the ratable account of each “Lender” under and as defined in the Existing Credit Agreement, as the case may be, (i) all accrued and unpaid commitment or unused fees, letter of credit fees, fronting fees and interest owing thereunder immediately prior to the effectiveness of this Amendment, (ii) the Required Lenders shall have executed principal amount of all unreimbursed “L/C Obligations” outstanding under and delivered counterparts of this Amendment to as defined in the Administrative Agent Existing Credit Agreement, and (iii) funded participations in “Letters of Credit” outstanding under and as defined in the Administrative Agent and Existing Credit Agreement immediately prior to the Multicurrency Administrative Agent shall have executed a counterpart effectiveness of this Amendment;
(bd) the Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Amendment No. 3 Effective Date and signed by a secretary or assistant secretary of such Loan Party, with appropriate insertions and attachments, including (x) the Charter Documents of such Loan Party, certified by the relevant authority of the jurisdiction of organization of such Loan Party, (y) a copy of the resolutions or the unanimous written consent authorizing (A) the transactions contemplated by the Loan Documents and (B) the execution, delivery and performance by such Loan Party of each Loan Document to which it is a party and the execution and delivery of the other documents to be delivered by it in connection herewith and therewith, and (z) a signature and incumbency certificate and (ii) a long form good standing certificate for each Loan Party from its jurisdiction of organization;
(e) the Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent). Such legal opinion shall cover such other matters incident to the transactions contemplated by this Amendment as the Administrative Agent may reasonably require;
(f) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying that: (i) each of the representations and warranties of made by the Borrowers (x) contained Loan Parties in Section 3 hereof shall be or pursuant to the Loan Documents are true and correct in all material respects on and as of the Amendment No. 1 3 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be is true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, any such qualification therein); (ii) no Default or Event of Default shall have has occurred and is continuing on the Amendment No. 3 Effective Date or after giving effect to the extensions of credit requested to be continuingmade on the Amendment No. 3 Effective Date and the use of proceeds thereof and (iii) the Loan Parties are in compliance with all applicable requirements of Regulations U, T and X of the Board;
(dg) all governmental and third party approvals necessary in connection with the financing contemplated by this Amendment and the Amended Credit Agreement and the continuing operations of the Loan Parties (including shareholder approvals, if any) shall have been obtained on satisfactory terms and shall be in full force and effect;
(h) the Administrative Agent shall have received (i) a certificate satisfactory audited consolidated financial statements of each BorrowerPublic Parent for the fiscal year ending December 31, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), 2024 and (ii) a certificate unaudited interim consolidated financial statements of compliance/status/good standingPublic Parent for the fiscal quarters ending March 31, as applicable2025 and June 30, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent 2025; and
(i) at least five (5) Business Days days prior to the Amendment No. 1 3 Effective Date;
, (ei) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred and Lenders shall have (x) received all documentation and other information regarding the Borrower and each Guarantor requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expensesPatriot Act, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges extent requested in writing of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due at least ten (10) days prior to the Amendment No. 1 Arranger 3 Effective Date and (includingy) a properly completed and signed IRS Form W-8 or W-9, without limitationas applicable, fees for the Borrower, and reasonable out-of-pocket expenses of counsel (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Amendment No. 1 Arranger) required 3 Effective Date, a Beneficial Ownership Certification in relation to be paid on the Amendment No. 1Borrower shall have received such Beneficial Ownership Certification.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied:
(ia) the Borrowers The Administrative Agent (or its counsel) shall have executed and delivered received:
(a) counterparts of this Amendment signed by the Borrowers, the Guarantors, the Administrative Agent, the Refinancing Lenders and the Lenders constituting Required Lenders; (b) a Revolving Credit Note, executed by the applicable Borrowers in favor of each Refinancing Revolving Credit Lender that has requested a Revolving Credit Note at least three (3) Business Days in advance of the Effective Date and (c) a Term Note, executed by the applicable Borrowers in favor of each Refinancing Term A Dollar Lender or Refinancing Term A Euro Lender that has requested a Term Note at least three (3) Business Days in advance of the Effective Date;
(a) the legal opinion of Ropes & ▇▇▇▇ LLP, counsel to the Loan Parties, (b) the legal opinion of Smith, Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Loan Parties, (c) the legal opinion of ▇▇▇▇ & Staehelin, Swiss counsel for the Lead Arrangers, (d) the legal opinion of Nagashima Ohno & Tsunematsu, Japanese counsel for the Loan Parties, and (e) the legal opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Finger P.A., Delaware counsel to the Japanese Subsidiary Borrower, in each case, dated as of the Effective Date and in form and substance reasonably satisfactory to the Administrative Agent;
(a) copies of each Organization Document for each Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Effective Date or a recent date prior thereto; (b) signature and incumbency certificates of the officers of each Borrower and each Guarantor executing this Amendment; (c) resolutions of the Board of Directors or similar governing body of each Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (d) if available, a good standing certificate from the applicable Governmental Authority of each Borrower’s and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Effective Date;
4. an officer’s certificate with respect to the Borrowers and the Guarantors in form and substance reasonably satisfactory to the Administrative Agent as to satisfaction of the conditions set forth in clauses (f) and (g) of this Section 6;
(b) The Administrative Agent and the Lead Arrangers shall have been paid all fees payable to the Administrative Agent and the Lead Arrangers, respectively, on the Effective Date and, to the extent invoiced at least two (2) Business Days prior to the Effective Date (or as otherwise reasonably agreed by the Parent Borrower), out-of-pocket expenses required to be paid by the Parent Borrower in connection with this Amendment, including the Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in accordance with Section 10.04 of the Existing Credit Agreement.
(c) At least three (3) Business Days prior to the Effective Date, the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including a certification regarding beneficial ownership as required by the 31 C.F.R. § 1010.230), including the USA PATRIOT Act, that has been requested in writing at least ten (10) Business Days prior to the Effective Date.
(d) The Administrative Agent shall have received, for the benefit of the Applicable Lenders, all accrued and unpaid interest on the Existing Term A Loans and the Existing Revolving Loans, to but excluding the Effective Date (whether or not then due) and all accrued and unpaid fees under the Existing Facilities (whether or not then due).
(e) The Administrative Agent shall have received (i) for the account of each Refinancing Lender a fee payable in the currency in which such Loans or Commitments are denominated equal to 0.15% of the aggregate principal amount of Commitments of such Refinancing Lender not in excess of the Commitments of such Refinancing Lender under the Existing Term Loans and Existing Revolving Credit Commitments under the Fourth Amended and Restated Credit Agreement immediately prior to the Fifth Restatement Effective Date; provided that with respect to the aggregate principal amount, if any, of Commitments of any Refinancing Lender in in excess of the Commitments of such Refinancing Lender under any of the Existing Facilities under the Fourth Amended and Restated Credit Agreement immediately prior to the Fifth Restatement Effective Date (any such excess amount, the “New Commitment Amount”), such fee shall be an amount equal to 0.25% of the New Commitment Amount of such Refinancing Lender and (ii) for the Required Lenders shall have account of each Term Lender that has returned an executed and delivered counterparts of counterpart to this Amendment to the Administrative Agent and at or prior to 5:00 p.m. (iiiNew York City time) on August 17, 2021, a consent fee payable in the Administrative Agent and currency in which such Loans are denominated equal to 0.025% of the Multicurrency Administrative Agent shall have executed a counterpart aggregate principal amount of this Amendment;Term B Loans of such Term Lender as of the Fifth Restatement Effective Date.
(bf) the The representations and warranties of each Loan Party set forth in Article V of the Borrowers (x) contained Existing Credit Agreement and in Section 3 hereof each other Credit Document shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that , except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, further, provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);dates.
(cg) prior to and immediately Immediately after giving effect to this Amendment, including the making of the Refinancing Revolving Credit Loans and the Refinancing Term Loans and the application of the proceeds therefrom, no Default or Event of Default shall have occurred and be continuing;exist.
(dh) the The Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures Solvency Certificate from a Responsible Officer of the Financial Officers and any other officers of such Parent Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including in substantially the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, form attached hereto as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Annex C.
Appears in 1 contract
Conditions of Effectiveness. This Amendment THIS AGREEMENT SHALL BECOME EFFECTIVE AS OF THE FIRST DATE (THE “FOURTH AMENDMENT EFFECTIVE DATE”) THAT ALL OF THE FOLLOWING CONDITIONS PRECEDENT SHALL HAVE BEEN SATISFIED:
2.1 The Administrative Agent’s receipt of the following, each of which shall be e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified and each in form and substance satisfactory to the Administrative Agent:
(a) counterparts of this Agreement, in such number as requested by the Administrative Agent, duly executed by the Borrower, the Guarantors, the Administrative Agent and Lenders constituting Required Lenders.
(b) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the amendment other Loan Documents to which such Loan Party is a party;
(c) a certificate of a Responsible Officer of the Credit Agreement as set forth Borrower to the effect that no event has occurred and is continuing which constitutes a Default;
(d) a fully executed copy of an amendment, in Section 1 hereof shall become effective each case dated as of (or prior to) the first date (such date being referred to as the “Fourth Amendment No. 1 Effective Date”) when , to each of the following conditions shall have been satisfied:(each as defined in the Intercreditor Agreement):
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, Regions Term Loan Agreement;
(ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and Huntington Term Loan Agreement;
(iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;PNC Term Loan Agreement; and
(biv) the Prudential Note Agreement.
2.2 The representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Fourth Amendment No. 1 Effective Date in all material respects with the same effect Date, as though made on and as of the Amendment No. 1 Effective Date (it being understood such date other than any such representations or warranties that, by their terms, refer to another date, in which case such representations and agreed that any representation or warranty which by its terms is made as of a specified date warranties shall be be true and have been correct in all material respects only as of such specified other date, and that any representation or warranty which is subject to any materiality qualifier .
2.3 There shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall not have occurred and since December 31, 2017, any event or circumstance, either individually or in the aggregate, that has had or could reasonably be continuing;
expected to have a Material Adverse Effect (d) excluding any event or circumstance resulting from the Administrative Agent shall have received (i) a certificate of each Borrower, dated COVID-19 pandemic to the Amendment No. 1 Effective Date and executed by its Secretary extent such event or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified circumstance has been publicly disclosed by the relevant authority of Borrower in its securities filings or disclosed in writing by the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on and the Second Lenders prior to the Fourth Amendment Effective Date), and (ii) a certificate the scope of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in such adverse effect is no greater than that which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agenthas been disclosed); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date on which the following conditions shall have been satisfied (such date being referred to as or waived) (the “Extension Amendment No. 1 Effective Date”):
(a) when each of the following conditions The Administrative Agents shall have been satisfied:
(i) the Borrowers shall have executed and delivered received counterparts of this Amendment to executed by the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent Borrowers and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentLenders on, or prior to, 3:00 p.m., New York City time on April 3, 2019 (the “Consent Deadline”);
(b) After giving effect to this Amendment and the transactions contemplated hereby, the representations and warranties set forth in Article 5 of the Borrowers Credit Agreement (xas amended by this Amendment) contained in Section 3 hereof shall be are true and correct in all material respects on (unless any such representation or warranty is qualified as to materiality, in which case such representation or warranty is true and correct in all respects) as of the Extension Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of such date, except to the Amendment No. 1 Effective Date extent such representations and warranties expressly relate to an earlier date (it being understood in which case such representations and agreed that any representation or warranty which by its terms is made as of a specified date warranties shall be be true and correct in all material respects only as of (unless any such specified date, and that any representation or warranty is qualified as to materiality, in which case such representation or warranty is subject to any materiality qualifier shall be be true and correct in all respects);
(c) as of such earlier date) and immediately prior to and immediately after giving effect to this Amendmentthe Extension Amendment No. 1 Effective Date, no Default or Event of Default shall have occurred and be continuing;
(dc) the The Administrative Agent Agents shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel to the Borrower Parties, addressed to the Administrative Agents and the Lenders and reasonably satisfactory to the Revolving Facility Administrative Agent); and;
(d) The Administrative Agents shall have received, with respect to each Borrower Party, a loan certificate signed by the secretary or assistant secretary of such Person, certifying a true, complete and correct copy of the resolutions of such Person (or its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of this Amendment, the Credit Agreement (as amended hereby) and the Loan Documents to which it is a party;
(e) The Administrative Agents shall have received a certificate of the secretary or an assistant secretary of the Administrative Borrower confirming compliance with the conditions precedent set forth in clause (b) of this Section 4;
(f) the Borrower The Borrowers shall pay have paid all reasonable fees and expenses due required to be paid to the Lenders on or before the Extension Amendment No. 1 Arranger Effective Date (including, without limitation, fees the Amendment Fees); and
(g) The Borrowers and reasonable out-of-pocket expenses each of counsel the Guarantors shall have provided, at least one Business Day prior to the Extension Amendment No. 1 Arranger) Effective Date, the documentation and other information to the Lenders that are required to be paid on by regulatory authorities under applicable “know-your-customer” rules and regulations (including, if any Borrower qualifies as a “legal entity customer” under the Amendment No. 1Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect of such Borrower), including the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (Zayo Group LLC)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 4 Effective Date”, which date is March 11, 2016) when each of the following conditions shall have been satisfied:
(ia) the Borrowers The Administrative Agent shall have executed and delivered received counterparts of this Amendment to duly executed and delivered by (A) the Borrower, (B) the MLP, (C) the Consenting Lender and (D) the Administrative Agent, .
(iib) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency The Administrative Agent shall have executed a counterpart received, on behalf of this Amendment;
(b) itself and the representations and warranties of Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and Credit Parties, dated as of the Amendment No. 1 4 Effective Date; provided that Date and addressed to the extent that such representations Administrative Agent and warranties specifically refer the Consenting Lender, in form and substance reasonably satisfactory to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);Administrative Agent.
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate certificates of each Borrower, dated good standing (to the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (Aextent such concept exists) certify from the resolutions applicable secretary of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures state of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction state of organization of such Borrower and a true and correct copy each Credit Party, certificates of its bylaws (resolutions or a confirmation that there have been no changes to such documents since those that were delivered to other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent on may reasonably require evidencing the Second identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Effective Date), and (ii) a certificate certificate, dated as of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 4 Effective Date;, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 2(e) and (f) of this Amendment.
(ed) Payment by the Borrowers shall pay Borrower of all reasonable fees and documented expenses due to the Administrative Agent and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Arranger”), including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses of (including the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and.
(e) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement (as amended hereby) or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 4 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) After giving effect to this Amendment, no Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower shall pay all reasonable fees and expenses due each applicable Credit Party) together with a copy of, or certificate as to coverage under, and a declaration page relating to, the Amendment No. 1 Arranger insurance policies required by Section 9.03 of the Credit Agreement (including, without limitation, fees flood insurance policies) and reasonable outthe applicable provisions of the Security Documents, each of which (i) shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), (ii) shall name the Collateral Agent, on behalf of the Guaranteed Creditors, as additional insured, (iii) in the case of flood insurance, shall (a) identify the address of each property located in a special flood hazard zone, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-of-pocket expenses of counsel renewal if permitted by applicable law and (iv) shall be otherwise in form and substance satisfactory to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Administrative Agent.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 5 Effective Date”, which date is October 13, 2015) when each of the following conditions shall have been satisfied:
(ia) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the The Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance counterparts of this Amendment, duly executed and delivered by (Bi) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this AmendmentBorrower, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standingHoldings, as applicable(iii) the MLP, for each Borrower from its jurisdiction of organization (iv) Consenting Lenders constituting the Required Lenders and each other jurisdiction in which it carries on business as may be reasonably requested by (v) the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;Agent.
(eb) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the The Administrative Agent incurred in connection with the preparationshall have received, execution and delivery on behalf of this Amendment itself and the other instruments and documents to be delivered hereunderLenders, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the Amendment No. 5 Effective Date and addressed to the Administrative Agent and each of the Lenders, in form and substance reasonably satisfactory to the Administrative Agent); and.
(c) The Administrative Agent shall have received (i) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Credit Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the Amendment No. 5 Effective Date, signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 3(e) and (f) the Borrower shall pay of this Amendment.
(d) Payment of all reasonable fees and expenses due to the Amendment No. 1 Administrative Agent and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Arranger”) (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower).
(including, without limitation, fees e) The representations and reasonable out-of-pocket expenses warranties of counsel to the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 1 Arranger5 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) required as of such earlier date.
(f) After giving effect to be paid on this Amendment, no Default or Event of Default exists, or would result from the Amendment No. 1effectiveness of this Amendment.
Appears in 1 contract
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as 3.1 The consent set forth in Section 1 Article I hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Consent Effective Date”) when when, and only when, the Administrative Agent shall have received an executed counterpart hereof from each of the Credit Parties and the Required Lenders.
3.2 The amendments set forth in Article II hereof shall become effective as of the date (the “Second Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied:
(ia) the Borrowers The Administrative Agent shall have executed received evidence reasonably satisfactory to it that the closing of the Redomestication Transactions in accordance with the Scheme of Arrangement has occurred without any amendment or modification thereto that, in the reasonable determination of the Administrative Agent, would be adverse in any material respect to the rights or interests of the Lenders, including without limitation, copies of all court orders and delivered counterparts governmental certificates and orders sanctioning the consummation of this Amendment the Redomestication Transactions;
(b) The Administrative Agent shall have received a legal opinion from counsel to the Credit Parties, in form and substance reasonably satisfactory to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment to addressing such matters as the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects)may reasonably request;
(c) prior The Administrative Agent shall have received a certificate, signed by a Responsible Officer of each Credit Party, in form and substance reasonably satisfactory to and immediately after giving effect to this Amendmentthe Administrative Agent, certifying that no Default or Event of Default shall have occurred exists, both immediately before and be continuingafter giving effect to this Second Amendment;
(d) the The Administrative Agent shall have received a certificate of the secretary, an assistant secretary or other appropriate officer of Swiss Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that attached thereto is a certificate true and complete copy of each Borrowerthe Articles of Association and all amendments thereto of Swiss Holdings, dated certified as of a recent date by the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions appropriate Governmental Authority of its Board jurisdiction of Directors organization, and that the same has not been amended since the date of such certification, and (ii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of Swiss Holdings authorizing the execution, delivery and performance of this AmendmentSecond Amendment and its joinder to the Unsecured Credit Agreement as a Guarantor, (B) identify by name and title as to the incumbency and bear the signatures genuineness of the Financial Officers and signature of each officer of Swiss Holdings executing this Second Amendment or any of the other officers of such Borrower authorized to sign this AmendmentCredit Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of attaching all such Borrower certified by the relevant authority copies of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws documents described above;
(or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on e) On the Second Amendment Effective Date), the representations and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization warranties set forth in Article IV hereof shall be true and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;correct; and
(ef) the Borrowers The Credit Parties shall pay have paid all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent incurred in connection with the preparation, negotiation, execution and delivery of this Second Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, the reasonable fees and reasonable out-of-pocket expenses of counsel to for the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Administrative Agent with respect thereto).
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings, AG)
Conditions of Effectiveness. This Amendment and the amendment The effectiveness of the Credit this Agreement as set forth in Section 1 hereof shall become effective as herein is subject to the following conditions precedent that:
(a) The Administrative Agent's receipt of the first following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date (such date being referred before the Closing Date) and each in form and substance satisfactory to as the “Amendment No. 1 Effective Date”) when Administrative Agent and each of the following conditions shall have been satisfiedLenders:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to the Administrative Agent, Agreement;
(ii) a Note executed by the Required Lenders shall have executed Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a secretary or assistant secretary or similar officer of each Loan Party as the Administrative Agent may require evidencing the identity, authority and delivered counterparts capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of incorporation or formation;
(v) a customary opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and (iii) each Lender, as to the enforceability of the Loan Documents and other matters reasonably requested by the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentAgent;
(bvi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all third party consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying, as of the Closing Date, (A) that the representations and warranties of the Borrowers (x) contained Loan Parties set forth in Section 3 hereof shall be the Loan Documents are true and correct in all material respects on (except to the extent that such representation and as of the Amendment No. 1 Effective Date; provided that warranty is qualified by materiality, in which case they shall have been true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (yB) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing or, after giving effect to the initial Borrowing contemplated hereunder (if any) or the application of proceeds therefrom, immediately would result therefrom; and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have or result in, either individually or in the aggregate, a Material Adverse Effect;
(viii) a certificate signed by the chief financial officer of the Borrower certifying that the Borrower (on a consolidated basis with the Subsidiaries), after giving effect to the initial Borrowing contemplated hereunder (if any), the application of the proceeds thereof and the consummation of the other transactions contemplated hereby, is Solvent; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid by the Borrower on or before the Closing Date shall have occurred been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be continuing;incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent and each such Lender shall have reasonably requested in order to comply with its respective obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(e) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any -40- Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case, at least three (3) Business Days prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of notice from such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days Lender prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of Section 2 of this Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred be subject to as the “Amendment No. 1 Effective Date”) when each Agent’s receipt of the following documents, in form and substance satisfactory to Agent, or, as applicable, the following conditions shall have been satisfiedbeing met:
(ia) the Borrowers shall have this Amendment, executed and delivered counterparts of this Amendment to the Administrative by Agent, (ii) the Required Lenders shall have executed each Lender and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentBorrower;
(b) a duly executed certificate of an officer of Borrower certifying and attaching copies of (A) the certificate of incorporation, certified as of a recent date by the jurisdiction of organization of Borrower and as in effect as of the Second Amendment Effective Date; (B) the bylaws of Borrower, as in effect as of the Second Amendment Effective Date; (C) resolutions of Borrower’s board of directors evidencing approval of this Amendment and the Advance to be made on the Second Amendment Effective Date, as such resolutions remain in full force and effect as of the Second Amendment Effective Date; and (D) a schedule setting forth the name, title and specimen signature of officers or other authorized signers on behalf of Borrower;
(c) a certificate of good standing for Borrower from its jurisdiction of organization and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified could have a Material Adverse Effect;
(d) a perfection certificate, executed by Borrower, in form and substance reasonably satisfactory to Agent;
(e) a legal opinion of Borrower’s counsel, in form and substance reasonably acceptable to Agent;
(f) on the Second Amendment Effective Date, after giving effect to the amendment of the Existing Loan Agreement contemplated hereby: (i) the representations and warranties of the Borrowers (x) contained in Section 3 hereof 4 shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Second Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date such date; and (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(cii) prior to and immediately after giving effect to this Amendment, there exists no Default or Event of Default or event that with the passage of time would result in an Event of Default; and
(g) Borrower shall have occurred and be continuing;
(d) the Administrative Agent shall have received paid (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date all invoiced costs and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendmentexpenses then due in accordance with Section 5(e), (Bii) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, Tranche 1C Facility Charge and (Ciii) contain appropriate attachmentsall other fees, including the certificate or articles costs and expenses, if any, due and payable as of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by Date under the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel to the Amendment No. 1 Arranger) required to be paid on the Amendment No. 1Loan Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (G1 Therapeutics, Inc.)
Conditions of Effectiveness. This Amendment Agreement and the amendment commitment of each Consenting Lender and New Lender, as applicable, to replace each Non-Consenting Lender pursuant to Sections 3.06(b) and 10.13 of the Existing Revolving Credit Agreement as set forth in and Section 1 hereof 2 of this Amendment Agreement shall become effective as of upon receipt by the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfiedAdministrative Agent of:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to Agreement by a Responsible Officer of each of the Borrower, Actavis, and Ultimate Parent and a duly authorized officer of (w) the Administrative Agent, (iix) each Consenting Lender, (y) each of the New Lenders and (z) the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a counterpart of this AmendmentL/C Issuer;
(bii) a certificate signed by a Responsible Officer of Ultimate Parent certifying that, on and as of the date hereof, (A) the representations and warranties contained in Article V of the Borrowers (x) contained in Section 3 hereof Second Amended ACT Revolving Credit Agreement shall be true and correct in all material respects on and as (B) no Default has occurred and is continuing;
(iii) a certificate signed by a Responsible Officer of the Borrower (A) certifying and attaching the resolutions adopted by the Borrower authorizing the execution and delivery of this Amendment No. 1 Effective Date; provided that Agreement and the performance of the Second Amended ACT Revolving Credit Agreement, (B) certifying as to the extent incumbency and specimen signature of each Responsible Officer executing this Amendment Agreement, (C) attaching a good standing certificate (or the local equivalent) and a certificate of incorporation evidencing that such representations the Borrower is validly existing and warranties specifically refer to an earlier date, they shall be in good standing (or the local equivalent) in its jurisdiction of organization and (D) certifying and attaching a true and correct in all material respects complete copy of the Organization Documents of the Borrower;
(iv) a Subsidiary Guarantor Counterpart (as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth defined in the Second Amended ACT Revolving Credit Agreement are true and correct on and as Agreement), executed by a Responsible Officer of Actavis Funding SCS, a limited partnership (société en commandite simple) organized under the laws of the Amendment NoGrand Duchy of Luxembourg having its registered office at ▇▇▇, ▇▇▇▇▇▇ ▇.▇. 1 Effective Date in all material respects ▇▇▇▇▇▇▇, L-1855 Luxembourg, registered with the same effect as though made on Luxembourg Registrar of Commerce and as Companies under number B 187.310 with a share capital of the Amendment No. 1 Effective Date $20,000 (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects“Actavis SCS”);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (iv) a certificate signed by a Responsible Officer of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall Actavis SCS (A) certify certifying and attaching the resolutions of its Board of Directors adopted by Actavis SCS authorizing the execution, delivery and performance of this Amendmentthe Loan Documents to which it is or is to be a party pursuant to the Second Amended ACT Revolving Credit Agreement, (B) identify by name certifying as to the incumbency and title and bear specimen signature of each Responsible Officer executing the signatures of the Financial Officers and any other officers of such Borrower authorized Loan Documents to sign this Amendmentwhich it is or is to be a party, and (C) contain appropriate attachments, including the attaching a good standing certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), local equivalent) and (ii) a certificate of compliance/status/incorporation (or the local equivalent) evidencing that Actavis SCS is validly existing and in good standing, as applicable, for each Borrower from standing (or the local equivalent) in its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by (D) certifying and attaching a true and complete copy of the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective DateOrganization Documents of Actavis SCS;
(evi) the Borrowers shall pay all reasonable and documented out-of-pocket expenses an executed legal opinion of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇, LLP, special New York counsel for the Borrower, addressed to the Administrative Agent)Agent and each Lender under the Second Amended ACT Revolving Credit Agreement and dated the date hereof, substantially in the form attached as Exhibit J-1 to the Second Amended ACT Revolving Credit Agreement and (B) Loyens & Loeff Luxembourg S.à ▇.▇., special Luxembourg counsel for the Borrower and Actavis SCS, addressed to the Administrative Agent and each Lender under the Second Amended ACT Revolving Credit Agreement and dated the date hereof, substantially in the form attached as Exhibit J-3 to the Second Amended ACT Revolving Credit Agreement; and
(fvii) the Borrower shall pay confirmation that all reasonable fees due and expenses due payable pursuant to the Second Amended ACT Revolving Credit Agreement have been paid. Upon such effectiveness, (i) this Amendment NoAgreement shall be a binding agreement between the parties hereto and their permitted assigns under the Existing Revolving Credit Agreement, and (ii) each party hereto agrees that their commitments and consents to this Amendment Agreement, once delivered, are irrevocable and may not be withdrawn. 1 Arranger (includingThe Administrative Agent shall promptly notify Ultimate Parent, without limitation, fees the Lenders and reasonable out-of-pocket expenses the L/C Issuer of counsel to the Amendment No. 1 Arranger) required to Effective Date in writing, and such notice shall be paid on the Amendment No. 1conclusive and binding.
Appears in 1 contract
Sources: Amendment Agreement (Actavis PLC)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when on which, and only if, each of the following conditions precedent shall have been satisfied:satisfied (or waived by the Increasing Lenders):
(ia) the Borrowers The Administrative Agent shall have executed received, in form and delivered counterparts of this Amendment substance satisfactory to the Administrative Agent, (ii) the Required Lenders shall have executed and delivered counterparts of this Amendment executed by each of the Loan Parties, each of the Increasing Lenders and the Administrative Agent.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and (iii) the Administrative Agent Lenders and the Multicurrency Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(e) the Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower and the other Loan Parties and ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, in each case, in form and substance reasonably acceptable to the Administrative Agent); andAgent and covering such other matters relating to the Loan Parties and this Amendment as the Increasing Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(fc) The Administrative Agent shall have received a certificate of a Secretary or an Assistant Secretary of the Company certifying (i) as to the resolutions authorizing the transactions contemplated by this Amendment and (ii) as to the incumbency of officers authorized to execute this Amendment and any New Notes.
(i) The fees separately agreed by the Administrative Agent and the Borrower, and (ii) to the extent invoiced to the Borrower shall pay all reasonable fees and expenses due at least one (1) Business Day prior to the Amendment No. 1 Arranger (includingEffective Date, without limitation, fees and all of the reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of one firm of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) The Borrower shall have executed and delivered to the Administrative Agent a replacement Note in favor of each Increasing Lender that has requested a replacement Note in the amount of its Revolving Commitment set forth on Schedule 2.01A attached hereto.
(f) The Amendment No. 1 Arranger) required to be paid on the Amendment No. 13 Effective Date shall have occurred.
Appears in 1 contract
Sources: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
Conditions of Effectiveness. This Amendment The obligations of the 2018 New Term A Lenders to make the 2018 New Term A Advances, the obligations of the New Term B Lenders to make the 2018 New Term B Advances and the amendment effectiveness of the Credit Agreement as set forth Incremental Amendments, in Section 1 hereof shall become effective as each case, on the Amendment Effective Date are subject (at the time of or substantially concurrently with the first date (making of such date being referred Advances to as be funded on the “Amendment No. 1 Effective Date”) when each to the satisfaction or waiver in writing of the following conditions shall have been satisfied(the date of such satisfaction or waiver, the “Amendment Effective Date”):
(a) The Administrative Agent’s (or its counsel’s) receipt of the following:
(i) the Borrowers shall have executed and delivered counterparts of this Amendment to executed by (i) the Administrative AgentBorrower, the Guarantors and (ii) the Required 2018 New Term A Lenders shall have executed and delivered counterparts the 2018 New Term B Lenders; or, as to any of this Amendment the foregoing 2018 New Term A Lenders or 2018 New Term B Lenders, advice satisfactory to the Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have that such Lender has executed a counterpart of this Amendment;
(bii) the representations and warranties copies of the Borrowers Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a) of the Amended Credit Agreement;
(xiii) contained in Section 3 hereof shall be true certified copies of the resolutions of the boards of directors and correct in all material respects on sole members, as applicable, of each of the Borrower and as each Guarantor approving the execution and delivery of the Amendment No. 1 Effective Date; provided that and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to the extent that such representations Amendment, the other Transactions and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and each other Loan Document;
(yiv) set forth in the Credit Agreement are true and correct on and as (a) a copy of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on charter or other constitutive document of each Loan Party and as of the Amendment No. 1 Effective Date each amendment thereto, certified (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject reasonably acceptable to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (iAgent) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority Secretary of State of the jurisdiction of organization of such Borrower and its incorporation or organization, as the case may be, thereof as being a true and correct complete copy thereof, or, in lieu of its bylaws the foregoing, (or b) a confirmation that there have been certificate signed on behalf of each Loan Party certifying no changes to any of such Loan Party’s charters or other constitutive documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(ev) a certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of the Amendment Effective Date), certifying as to (A) the Borrowers shall pay all reasonable accuracy and documented out-of-pocket expenses completeness of the Administrative Agent incurred charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in connection with effect on the preparationdate on which the resolutions of the board of directors (or sole member) of such Person referred to in clause (iii) above were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate unless such copy is not required to be attached pursuant to clause (iv)(b) above) and (C) the absence of any proceeding known to be pending for the dissolution, execution liquidation or other termination of the existence of such Loan Party;
(vi) a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and delivery true signatures of this the officers of such Loan Party authorized to sign the Amendment and the other instruments and documents to be delivered hereunder, if any thereunder;
(but limitedvii) a certificate, in substantially the case form of legal fees and expenses, Exhibit C to this Amendment attesting to the actual reasonable solvency of the Borrower and documented out- of-pocket feesits subsidiaries, disbursements and other charges on a consolidated basis (after giving effect to the GrazianoFairfield Transactions), from its Chief Financial Officer;
(viii) favorable opinions of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇, LLP, counsel to the Loan Parties, and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan and Ohio counsel to the Loan Parties, in each case dated as of the Amendment Effective Date and addressing such matters as the Administrative Agent)Agent may reasonably request, including in respect of collateral; and
(fix) good standing certificates (or equivalent document) for each Loan Party as of a recent date from Secretary of State (or other similar official) of the Borrower jurisdiction of its organization;
(b) The Lenders shall pay all reasonable fees and expenses due have received at least three (3) Business Days prior to the Amendment No. 1 Arranger (includingEffective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, fees and reasonable out-of-pocket expenses the Patriot Act, in each case to the extent reasonably requested of counsel the Borrower at least 10 Business Days prior to the Amendment No. 1 ArrangerEffective Date; and
(c) required to be paid the GrazianoFairfield Acquisition (as defined below) shall have been consummated simultaneously or substantially concurrent with the closing under the 2018 Term A Facility Upsize and the 2018 Term Loan B Facility on the Amendment No. 1terms described in the GrazianoFairfield Acquisition Agreement (as defined below); (d) the 2018 Lead Arrangers shall have received a pro forma consolidated balance sheet and a related pro forma consolidated statement of income of the Borrower and its Subsidiaries (based on the financial statements of the Borrower referred to in clause (e) below and the GrazianoFairfield Acquired Business to the extent provided in connection with the GrazianoFairfield Acquisition Agreement) prepared after giving effect to the GrazianoFairfield Transactions as if the GrazianoFairfield Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statement of income), which reflect adjustments applied in accordance with Regulation S-X of the Securities Act of 1933, as amended, as well as adjustments customary for Rule 144A transactions, it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined by the Borrower;
Appears in 1 contract