Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"): (a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent. (b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof). (c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document. (d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent. (e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment. (f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Collateral Custodian, the Calculation Agent or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdings, Requisite Lenders all other Transaction Documents (other than the Administrative Agent Fee Letter and the Tranche C Term Loan Lenders shall Collateral Custodian Fee Letter) and all other agreements, instruments, certificates and other documents listed on Schedule II have indicated their consent by been duly executed by, and delivered to, the execution parties hereto and delivery of the signature pages hereof to the Administrative Agent.thereto;
(bii) Company shall have delivered to Administrative Agent a fully executed all up-front expenses and delivered Fourth Amendment Date Certificate fees (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees including reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses legal fees and any fees required under the Fee Letters) that are required to be reimbursed paid hereunder or paid by the Company hereunder or under any other Credit Document.Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full;
(diii) Administration Agent the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all material respects (except that any representation qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects as so qualified) (as certified by the Borrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the Lenders other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(v) no action, proceeding or investigation has been instituted or, to the knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders' sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vi) the Borrower shall have obtained an investment grade rating (BBB- or higher) from a Nationally Recognized Statistical Rating Organization, such as KBRA, and the Initial Lender shall have a received originally executed copies a copy of any rating letter issued in connection therewith; and
(vii) the Administrative Agent has received all documentation and other information requested by the Administrative Agent acting at the direction of the favorable written opinion of AkinMajority Lenders or required by regulatory authorities with respect to the Borrower and the Calculation Agent under applicable "know your customer" and anti-money laundering rules and regulations, Gumpincluding the USA PATRIOT Act, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise all in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Carlyle Secured Lending III)
Conditions Precedent to Effectiveness. The effectiveness This amendment and restatement of the amendments set forth at Section I hereof is subject to Existing Credit Agreement shall become effective on and as of the satisfactionfirst date (such first date, or waiver, of the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) The Administrative Agent shall not have received on or prior to the Effective Date notice from Required Lenders that a Material Adverse Change since December 31, 2021, has occurred and is continuing.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries, including any Environmental Action, pending or, to the best of the Borrower’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be determined adversely and, if determined adversely, would have a Material Adverse Effect or (ii) purports to adversely affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby.
(c) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date, and the Administrative Agent shall have notified each Lender thereof.
(d) The Borrower shall have paid all accrued and invoiced fees and reasonable expenses of the Administrative Agent, the Lenders and the Issuing Banks (including the accrued and invoiced reasonable fees and out of pocket expenses of counsel to the Administrative Agent).
(e) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender and Issuing Bank a certificate signed by the President, a Vice President or a Financial Officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 of this Agreement are correct in all material respects on and as of the Effective Date; and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Administrative Agent shall have received on or before the date hereof Effective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender:
(i) This Agreement, executed by each of the parties hereto (which, subject to Section 8.12(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).
(ii) Certified copies of the resolutions of the board of directors of the Borrower approving this Agreement of the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder.
(iv) A guarantee (the "FOURTH AMENDMENT EFFECTIVE DATE"):“Guarantee”) duly executed by Ovintiv Canada ULC, substantially in the form previously provided to the Administrative Agent, together with (A) certified copies of the resolutions of the board of directors of Ovintiv Canada ULC approving its Guarantee, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to such Guarantee and (B) a certificate of an officer of Ovintiv Canada ULC certifying the names and true signatures of the officers of Ovintiv Canada ULC authorized to sign such Guarantee.
(av) CompanyAn opinion of P▇▇▇, HoldingsWeiss, Requisite Lenders Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, special New York counsel to the Borrower and certain of its U.S. Subsidiaries, substantially in the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery form of the signature pages hereof Exhibit D hereto or otherwise in a form reasonably satisfactory to the Administrative Agent.
(bvi) Company shall have delivered An opinion of Blake, C▇▇▇▇▇▇ & G▇▇▇▇▇▇ LLP, special Canadian counsel to Administrative Agent Ovintiv Canada ULC, substantially in the form of Exhibit E hereto or otherwise in a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect form reasonably satisfactory to the Tranche C Term Loans for all purposes hereof)Administrative Agent.
(cg) Company Borrower shall have paid made payment in full of the aggregate principal amount of all advances outstanding, under the Existing Credit Agreement, together with accrued interest thereon and all fees and other amounts due invoiced and payable on or owing to the lenders thereunder to the Effective Date.
(h) The Administrative Agent shall have received, prior to the Fourth Amendment Effective Date, includingall documentation and other information regarding the Borrower and its Subsidiaries that will execute a Guarantee pursuant to Section 3.01(f)(iv) requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act to the extent invoiced, reimbursement or other payment requested in writing of all out-of-pocket expenses required the Borrower at least ten (10) days prior to be reimbursed or paid by the Company hereunder or under any other Credit DocumentEffective Date.
(di) Administration Agent and Provided (i) such information is reasonably requested from the Lenders shall have received originally executed copies of Borrower and/or Ovintiv Canada ULC at least five (5) Business Days prior to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form (ii) Borrower and/or Ovintiv Canada ULC qualify as a “legal entity customer” under the Beneficial Ownership Regulation, then the Administrative Agent and substance reasonably satisfactory each requesting Lender shall receive, at least three (3) days prior to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable the Effective Date, in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant Beneficial Ownership Regulation, a Beneficial Ownership Certification with respect to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationBorrower and/or Ovintiv Canada ULC.
Appears in 1 contract
Sources: Credit Agreement (Ovintiv Inc.)
Conditions Precedent to Effectiveness. The effectiveness of This Amendment shall become effective on the amendments set forth at Section I hereof is subject to date (the satisfaction, or waiver, “First Amendment Effective Date”) when each of the following conditions on shall have been satisfied; provided that if the following conditions are not satisfied by November 16, 2012, this Amendment shall not become effective and shall be of no force or before effect with respect to the date Credit Agreement:
(i) the Borrower, the Administrative Agent, each Issuing Lender and each other Lender shall have signed a counterpart hereof (whether the "FOURTH AMENDMENT EFFECTIVE DATE"):
(asame or different counterparts) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent delivered (including by way of facsimile, pdf or other electronic transmission) the execution and delivery of the signature pages hereof same to the Administrative Agent.;
(bii) Company the Administrative Agent shall have delivered received favorable customary legal opinion of ▇▇▇▇▇ Day, counsel to the Credit Parties addressed to the Administrative Agent a fully executed and delivered Fourth each of the Lenders party to the Credit Agreement on the First Amendment Effective Date Certificate and dated the First Amendment Effective Date covering such matters incidental to this Amendment and the transactions contemplated hereby as the Administrative Agent may reasonably request;
(iii) the Administrative Agent shall have received (A) true and complete copies of resolutions of the board of directors of the Borrower approving and authorizing the execution, delivery and performance of the Credit Agreement and the Credit Documents, in each case as modified by this Amendment, certified as of the First Amendment Effective Date by an Authorized Representative and attested to by another Authorized Representative of the Borrower as being in full force and effect without modification or amendment and (B) good standing certificates for the Borrower from the jurisdiction in which the Borrower is organized;
(iv) all of the representations and warranties made pursuant to Section 3 hereof shall be deemed to be a Funding Notice with respect to true and correct in all material respects on the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth First Amendment Effective Date, includingboth before and after giving effect to this Amendment, with the same effect as though such representations and warranties had been made on and as of the First Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date);
(v) the Administrative Agent shall have received payment from the Borrower, for the account of each Lender that executes and delivers a counterpart signature page to this Amendment prior to 10:00 A.M., New York City time, on November 16, 2012 (the “Revolver Consent Deadline”), a non-refundable consent fee payable in Dollars in an amount equal to 0.075% of the Commitment of each such Lender in effect as of the First Amendment Effective Date;
(vi) the Borrower shall have paid (A) all fees required to be paid to the extent invoicedAdministrative Agent (or its affiliate) on the First Amendment Effective Date pursuant to that certain Fee Letter dated November 5, reimbursement or 2012, by and among the Borrower, the Administrative Agent and Deutsche Bank Securities Inc. and (B) any other payment of all reasonable and documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed or paid by pursuant to Section 13.01 of the Company hereunder or under any other Credit Document.Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent; and
(dvii) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and documents, information or agreements regarding Credit Parties and the Credit Agreement Borrower as the Agents or Lenders may Administrative Agent shall reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on precedent have been satisfied or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):waived:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders There shall have indicated their consent by occurred no material adverse change in the execution and delivery operations or condition (financial or otherwise) of the signature pages hereof to the Administrative AgentCompany and its Subsidiaries, taken as a whole, since December 31, 2021.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(d) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby, and there shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to been no material adverse change in the Tranche C Term Loans for all purposes hereof)status, or financial effect on the Company or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(d) hereto.
(c) [Reserved].
(d) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(e) The Company hereby notifies the Agent that the proposed Effective Date is April 14, 2022.
(f) The Company shall have paid all fees reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket accrued fees and expenses required to be reimbursed or paid by of the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders (including the reasonable and documented accrued fees and expenses of external counsel to the Agent); provided, however, that the expenses of legal counsel shall be limited to one law firm identified by the Agent (and if necessary, one local counsel identified by the Agent in any relevant material jurisdiction).
(g) On the Effective Date, the following statements shall be true and the Agent shall have received originally executed copies for the account of each Lender a certificate signed by a duly authorized officer of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably requestCompany, dated the Fourth Amendment Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date in all material respects (or, with respect to representations and otherwise warranties that contain a materiality qualification, are correct in all respects) as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(h) The Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to Administration the Agent:
(i) The Notes made by the Company to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17.
(ii) Certified copies of the resolutions of the Board of Directors (or equivalent body) of the Company approving this Agreement and the Notes to be delivered by it, and of its by-laws and certificate of incorporation, together with all amendments thereto, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered by it hereunder.
(iv) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to the Agent.
(ei) Each Credit Party The Agent shall have obtained all material consents necessary received on or advisable in connection with before the transaction contemplated Effective Date (i) a counterpart of this Agreement signed on behalf of each party hereto and (ii) a copy of a good standing certificate issued by this Fourth Amendmentthe Secretary of State of the jurisdiction of the Company’s jurisdiction of incorporation.
(fj) The Agent and Lenders shall have received such all documentation and other documents information required by regulatory authorities under applicable “know your customer” and information regarding Credit Parties and Anti-Money Laundering Laws, including the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant PATRIOT Act, requested at least three Business Days prior to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationEffective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2022 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is this Amendment shall be subject to the satisfactionfollowing conditions precedent:
1.1 Purchaser Agent shall have received this Amendment, or waiverduly executed by Issuer, the other Obligors, Purchaser Agent and the Required Purchasers as required by Section 13.6 of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):Note Purchase Agreement;
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders 1.2 Purchaser Agent shall have indicated their consent received the consents with respect to (i) the Exclusive Patent and Non-Exclusive Know-How License Agreement, dated as of December 7, 2016, between Cambridge Enterprises Limited and Apcintex, (ii) the License Agreement, dated February 4, 2015, between Cambridge Enterprises Limited and Z Factor Limited and (iii) the Patent and Know How License Agreement, dated October 30, 2015, between Cambridge Enterprises Limited and Morphogen-IX Limited, each in the form provided by the execution and delivery of the signature pages hereof to the Administrative Purchaser Agent.
1.3 All written certificates and written statements heretofore furnished to Purchaser Agent or any Purchaser by or on behalf of any Obligor for purposes of or in connection with this Amendment or any transaction contemplated hereby do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (b) Company shall have delivered to Administrative Agent a fully executed it being recognized that the projections and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to forecasts provided by Issuer in good faith and based upon reasonable assumptions are not viewed as facts and that actual results during the Tranche C Term Loans for all purposes hereofperiod or periods covered by such projections and forecasts may differ from the projected or forecasted results).
1.4 Each of the representations and warranties in Article V of the Note Purchase Agreement shall be true, accurate and complete in all material respects as of the date hereof; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date; and
1.5 No Event of Default or Default under any of the Note Documents (cother than the Specified Events of Default) Company shall have paid all fees occurred and other amounts due and payable be continuing, on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment effective date of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Note Purchase Agreement (Centessa Pharmaceuticals PLC)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is this Agreement shall be subject to the satisfaction, prior waiver or waiver, receipt by Lender of each of the following conditions on or before precedent, each in form and substance satisfactory to Lender (the date hereof (on which such conditions are satisfied or waived, the "FOURTH AMENDMENT EFFECTIVE DATE"“Effective Date”):
(a) Companythis Agreement, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent signed by the execution and delivery of the signature pages hereof to the Administrative Agentall Obligors.
(b) Company No Default or Event of Default shall have delivered to Administrative Agent a fully executed occurred and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to continuing as of or on the Tranche C Term Loans for all purposes hereof)Effective Date.
(c) Company shall have paid all fees Each of the representations and other amounts due and payable on warranties made by any Obligor in or prior pursuant to the Fourth Amendment Loan Documents shall be true and correct in all material respects as of the Effective Date, including, Date (except to the extent invoicedsuch representation and warranty expressly relates to an earlier date, reimbursement in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date), except that any representations and warranties subject to “materiality”, “Material Adverse Effect” or other payment similar materiality qualifiers shall be true and correct in all respects as of all out-of-pocket expenses required the date of such extension of credit (except to be reimbursed or paid by the Company hereunder or under extent any other Credit Documentsuch representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct as of such earlier date).
(d) Administration Agent Evidence that (i) all Specified Defaults (as defined in those certain Forbearance Agreements dated on or about May 9, 2023 between, among others, DSM and the Lenders shall have received originally executed copies of Obligors, the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special counsLender and the Obligors and ▇▇▇▇▇▇▇ ▇▇r t▇▇ ▇redit PartiesVentures LLC and the Obligors (together the “Forbearance Agreements”) have been waived, as to such matters as Administrative Agent may reasonably request, dated and (ii) all breaches and defaults (however described) under the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration AgentForbearance Agreements have been waived.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with Evidence that DSM has consented to the transaction transactions contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness A legal opinion of this Fourth Amendment pursuant ▇▇▇▇▇▇▇ & West LLP, legal advisers to the conditions set forth in this Section IIObligors.
(g) A Cashflow Report for the 13 week period from the Closing Date.
(h) A certificate of each Obligor, all outstanding amounts under executed by an authorized officer of such Obligor, with appropriate insertions and attachments, including (i) the Tranche A Term Loans constituent documents of such Obligor, (ii) the relevant board resolutions or written consents of such Obligor adopted by such Obligor for the purposes of authorizing such Obligor to enter into and Tranche B Term Loans shall be paid and satisfied in full and if perform the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver Documents to which such Note to the Company for cancellation.Obligor is party,
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness obligation of each Lender to make Loans hereunder shall become effective on and as of the amendments set forth at Section I hereof is subject to date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions precedent shall have been satisfied:
(a) There shall have occurred no Material Adverse Change since December 31, 2007.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) is initiated by any Person other than a Lender in its capacity as a Lender that purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrower shall have paid all invoiced fees and expenses of the Administrative Agent and the Lenders (including the invoiced fees and expenses of counsel to the Administrative Agent).
(e) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) Between December 31, 2007 and the Effective Date, there has been no Material Adverse Change,
(ii) There is no pending or (to the knowledge of the Borrower) threatened action or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect,
(iii) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(iv) No event has occurred and is continuing that constitutes a Default.
(f) The Administrative Agent shall have received on or before the date hereof Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Administrative Agent and (the "FOURTH AMENDMENT EFFECTIVE DATE"):except for Notes) in sufficient copies for each Lender:
(ai) Company, Holdings, Requisite The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.14.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery of this Agreement and the signature pages hereof Notes, if any, and of all documents evidencing other necessary partnership action and governmental approvals, if any, with respect to this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, and the other documents to be delivered hereunder.
(iv) A favorable opinion of the Vice President and General Counsel or Vice President and Deputy General Counsel for the Borrower, covering the matters set forth in Exhibit D hereto.
(v) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., in its capacity as Administrative Agent, in form and substance satisfactory to the Administrative Agent.
(bg) Company shall have delivered to The Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of on or before the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise the financial statements described in Section 4.01(e), in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Verizon Communications Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 26, 2015 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by An executed copy of this Fourth AmendmentAgreement from each party hereto.
(fg) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This amendment and restatement of the amendments set forth at Section I hereof is subject to Existing Credit Agreement shall become effective on and as of the satisfaction, or waiver, of first date (the “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders There shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2010.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that (i) the Information Memorandum (other than the financial projections included therein) contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances in which such statements were made or (ii) the financial projections included in the Information Memorandum were not prepared in good faith based upon reasonable assumptions at the time prepared (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Company’s control, and that no assurance can be given that the projections will be realized); and without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Company and its Subsidiaries as they shall have requested.
(d) The Company shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued fees (including the fees described in the Information Memorandum) and other amounts due and payable on or prior to expenses of the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies (including the invoiced accrued fees and expenses of counsel to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment).
(f) The On the Effective Date, the following statements shall be true and the Agent and Lenders shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to each Loan Document to which it is a party.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder.
(iv) A favorable opinion of ▇▇▇ ▇▇▇▇▇, General Counsel for the Company, substantially in the form of Exhibit D hereto and as to such other documents and information regarding Credit Parties and matters as any Lender through the Credit Agreement as the Agents or Lenders Agent may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Five Year Credit Agreement (Cytec Industries Inc/De/)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 25, 2010 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by An executed copy of this Fourth AmendmentAgreement from each party hereto.
(fg) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This amendment and restatement of the amendments set forth at Section I hereof is subject to Existing Credit Agreement shall become effective on and as of the satisfaction, or waiver, of first date (the "Effective Date") on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders There shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2006.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that (i) the Information Memorandum (other than the financial projections included therein) contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances in which such statements were made or (ii) the financial projections included in the Information Memorandum were not prepared in good faith based upon reasonable assumptions at the time prepared (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Company's control, and that no assurance can be given that the projections will be realized); and without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Company and its Subsidiaries as they shall have requested.
(d) The Company shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued fees (including the fees described in the Information Memorandum) and other amounts due and payable on or prior to expenses of the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies (including the invoiced accrued fees and expenses of counsel to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment).
(f) The On the Effective Date, the following statements shall be true and the Agent and Lenders shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to each Loan Document to which it is a party.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder.
(iv) A favorable opinion of Roy Smith, General ▇▇▇▇▇▇▇ ▇or the Company, substantially in the form of Exhibit D hereto and as to such other documents and information regarding Credit Parties and matters as any Lender through the Credit Agreement as the Agents or Lenders Agent may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Five Year Credit Agreement (Cytec Industries Inc/De/)
Conditions Precedent to Effectiveness. The effectiveness This amendment and restatement of the amendments set forth at Section I hereof is subject to Existing Credit Agreement shall become effective on and as of the satisfaction, or waiver, of first date (the "Effective Date") on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyExcept for the Disclosed Matters, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders no Material Adverse Change shall have indicated their consent by the execution occurred and delivery of the signature pages hereof to the Administrative Agentbe continuing since December 31, 2006.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) except for the Disclosed Matters, could be reasonably likely to have delivered a Material Adverse Effect or (ii) purports to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to affect the Tranche C Term Loans for all purposes hereof)legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) The Company shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(d) The Company shall have paid all accrued fees and other amounts due and payable on or prior to expenses of the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies (including the accrued fees and expenses of counsel to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as Agent (but not other Lenders)) required to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentbe paid by it.
(e) Each Credit Party On the Effective Date, the following statements shall be true and the Agent shall have obtained all material consents necessary or advisable received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in connection with Section 4.01 are correct on and as of the transaction contemplated by this Fourth AmendmentEffective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent and Lenders shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the board of directors or other governing body of the Initial Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate or similar action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Initial Borrower certifying the names and true signatures of the officers of the Initial Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of (A) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Initial Borrower, and information regarding Credit Parties (B) ▇▇muel K. Lee, Associate General Counsel, Corporate, Finance ▇▇d Ventures of the Initial Borrower, substantially in the form of Exhibits D-1 and D-2 hereto, respectively.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant Agent, in form and substance satisfactory to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationAgent.
Appears in 1 contract
Sources: Credit Agreement (Xerox Corp)
Conditions Precedent to Effectiveness. The effectiveness Except as otherwise provided herein, the Agreement shall become effective upon the satisfaction or waiver in writing by each of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, parties of all of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATEEffective Date"):
(a) Company, Holdings, Requisite Lenders Approval of the Agreement and the Tranche C Term Loan Lenders shall have indicated their consent transactions contemplated thereby by the execution and delivery of requisite lenders under the signature pages hereof to the Administrative Agent.Credit Agreement;
(b) Company shall have delivered Execution by such of the following Plans of renegotiated contracts as contemplated by the Transition Plan effective January 1, 1999 and incorporating such Plans' agreements to Administrative Agent a fully executed pay retroactive premium adjustments due thereunder to MPN in the aggregate amount of not less than Ten million dollars: Aetna U.S. Healthcare, Foundation Health Systems, Inc. (including Health Net and delivered Fourth Amendment Date Certificate Foundation Health), Prudential Health Care Plans, Inc., United HealthCare of California, Inc. and Wellpoint Health Networks (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereofincluding Blue Cross of California and California Care).;
(c) Company Assumption by Plans constituting 95% of capitation amounts payable to MPN for the month of May 1999 of institutional risk effective by July 1, 1999. For purposes of this Agreement, the parties agree not to characterize the legal implications of such assumption, other than the assumption of institutional risk; provided, however, that (i) such assumption shall not affect any Claim a Plan may have against MPN concerning damages related to such assumption of institutional risk, and (ii) any obligations to pay institutional capitation to MPN under the Plan Agreements or the Plan Stipulation subsequent to the applicable date of assumption of institutional risk shall have paid all fees and other amounts due and payable on or been terminated by order of the Bankruptcy Court prior to the Fourth Amendment Effective Date, including, to due date and the extent invoiced, reimbursement or other payment making of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.such payment;
(d) Administration Agent Authorization and approval by the Bankruptcy Court of MPN's execution and performance of the Agreement. As used in this Section, the date on which authorization and approval by the Bankruptcy Court occurs shall mean the date on which the order of the Bankruptcy Court approving this Agreement as it relates to MPN becomes a Final Order, unless the requirement of finality is waived by the Special Monitor-Examiner, MPN, MedPartners, and the Lenders Creditors Committee, in which case such date shall have received originally executed copies be the eleventh day following the date on which the Bankruptcy Court enters an order approving this Agreement, unless that order is subject to stay pending appeal, in which case upon such waiver of the favorable written opinion date, shall be no earlier than the first Business Day after the expiration of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.stay;
(e) Each Credit Party The Bankruptcy Court order approving this Agreement shall have obtained all material consents necessary or advisable provide that the parties hereto (and any parties claiming thereto) shall be prohibited from using any funds deposited in connection the MPN California Account otherwise than in accordance with the transaction contemplated by terms of this Fourth Amendment.Agreement;
(f) Entry of an order of the Bankruptcy Court approving the Second Amended Agreement;
(g) Satisfaction or waiver of all the conditions precedent to the SPA Effective Date (as defined in) the Supplemental Plan Agreement;
(h) The Agent and Lenders Plan of Reorganization Effective Date shall have received such other documents and information regarding Credit Parties occur; and
(i) No proceeding is pending for the enjoinment, suspension, revocation or termination of this Agreement as of the SPA Effective Date and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationPlan Effective Date.
Appears in 1 contract
Sources: Operations and Settlement Agreement (Caremark Rx Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on precedent have been satisfied or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):waived:
(a) CompanyExcept as disclosed in filings made by the Company with the SEC, Holdingspress releases and other public disclosures prior to the date hereof, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2024.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) All material governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained.
(d) The Company shall have paid all accrued and invoiced fees and other amounts due and payable on or prior to expenses of the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders (including the accrued and invoiced fees and expenses of counsel to the Agent) to the extent invoiced prior to the Effective Date.
(e) On the Effective Date, the following statements shall be true and the Agent shall have received originally executed copies for the account of each Lender a certificate signed by a duly authorized officer of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably requestCompany, dated the Fourth Amendment Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date and otherwise the following, each dated the Effective Date, in form and substance reasonably satisfactory to Administration the Agent:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Effective Date.
(eii) Each Credit Party shall have obtained Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all material consents documents evidencing other necessary or advisable in connection corporate action with respect to this Agreement and the transaction contemplated by this Fourth AmendmentNotes.
(fiii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A customary opinion of counsel of the Company (which may be in-house counsel).
(g) The Agent and Lenders Company shall have received such other documents terminated the commitments, and information regarding Credit Parties paid in full all accrued and unpaid amounts, under the Company’s Credit Agreement dated as of June 6, 2022 (the Agents or “Existing Credit Agreement”). Each of the Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant that is a party to the conditions set forth in this Section II, all outstanding amounts Existing Credit Agreement hereby waives the requirement of prior notice of termination of the commitments under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationExisting Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Corning Inc /Ny)
Conditions Precedent to Effectiveness. The effectiveness This amendment and restatement of the amendments set forth at Section I hereof is subject to Existing Credit Agreement shall become effective on and as of the satisfaction, or waiver, of first date (the “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders There shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2012.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that (i) the Information Memorandum (other than the financial projections included therein) contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances in which such statements were made or (ii) the financial projections included in the Information Memorandum were not prepared in good faith based upon reasonable assumptions at the time prepared (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Company’s control, and that no assurance can be given that the projections will be realized); and without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Company and its Subsidiaries as they shall have requested.
(d) The Company shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued fees (including the fees described in the Information Memorandum) and other amounts due and payable on or prior to expenses of the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies (including the invoiced accrued fees and expenses of counsel to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment).
(f) The On the Effective Date, the following statements shall be true and the Agent and Lenders shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to each Loan Document to which it is a party.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder.
(iv) A favorable opinion of ▇▇▇ ▇▇▇▇▇, General Counsel for the Company, substantially in the form of Exhibit D hereto and as to such other documents and information regarding Credit Parties and matters as any Lender through the Credit Agreement as the Agents or Lenders Agent may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Five Year Credit Agreement (Cytec Industries Inc/De/)
Conditions Precedent to Effectiveness. The effectiveness of This Agreement shall become effective on the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):have been satisfied:
(a) CompanyExcept for the Disclosed Matters, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders no Material Adverse Change shall have indicated their consent by the execution occurred and delivery of the signature pages hereof to the Administrative Agentbe continuing since December 31, 2015.
(b) Company There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) except for the Disclosed Matters, could be reasonably likely to have delivered a Material Adverse Effect or (ii) purports to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to affect the Tranche C Term Loans for all purposes hereof)legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) Company The Borrower shall have paid all fees notified each Lender and other amounts due and payable on or prior the Agent in writing as to the Fourth Amendment proposed Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders shall have received originally executed copies (including the accrued fees and expenses of counsel to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as Agent (but not other Lenders)) required to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentbe paid by it.
(e) Each Credit Party On the Effective Date, the following statements shall be true and the Agent shall have obtained all material consents necessary or advisable received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in connection with Section 4.01 are correct on and as of the transaction contemplated by this Fourth AmendmentEffective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent and Lenders shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the board of directors or other governing body of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate or similar action and governmental approvals, if any, with respect to this Agreement and the Notes to be delivered by it.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes to be delivered by it and the other documents to be delivered hereunder.
(iv) Favorable opinions of (A) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Borrower, and information regarding Credit Parties (B) ▇▇▇ ▇. ▇▇▇, General Counsel of the Borrower, substantially in the form of Exhibits D-1 and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section IID-2 hereto, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationrespectively.
Appears in 1 contract
Sources: Term Loan Agreement (Xerox Corp)
Conditions Precedent to Effectiveness. The effectiveness of This Amendment shall become effective on the amendments set forth at Section I hereof is subject to date (the satisfaction, or waiver, “Third Amendment Effective Date”) when each of the following conditions on shall have been satisfied; provided that if the following conditions are not satisfied by February 14, 2014, this Amendment shall not become effective and shall be of no force or before effect with respect to the date Credit Agreement:
(i) the Borrower, the Administrative Agent, each Issuing Lender and each other Lender shall have signed a counterpart hereof (whether the "FOURTH AMENDMENT EFFECTIVE DATE"):
(asame or different counterparts) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent delivered (including by way of facsimile, pdf or other electronic transmission) the execution and delivery of the signature pages hereof same to the Administrative Agent.;
(bii) Company the Administrative Agent shall have delivered received favorable customary legal opinion of ▇▇▇▇▇ Day, counsel to the Credit Parties addressed to the Administrative Agent a fully executed and delivered Fourth each of the Lenders party to the Credit Agreement on the Third Amendment Effective Date Certificate and dated the Third Amendment Effective Date covering such matters incidental to this Amendment and the transactions contemplated hereby as the Administrative Agent may reasonably request;
(iii) the Administrative Agent shall have received (A) true and complete copies of resolutions of the board of directors of the Borrower approving and authorizing the execution, delivery and performance of the Credit Agreement and the Credit Documents, in each case as modified by this Amendment, certified as of the Third Amendment Effective Date by an Authorized Representative and attested to by another Authorized Representative of the Borrower as being in full force and effect without modification or amendment and (B) good standing certificates for the Borrower from the jurisdiction in which the Borrower is organized;
(iv) all of the representations and warranties made pursuant to Section 3 hereof shall be deemed true and correct in all material respects on the Third Amendment Effective Date, both before and after giving effect to this Amendment, with the same effect as though such representations and warranties had been made on and as of the Third Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date);
(v) since December 29, 2012, nothing shall have occurred (and neither the Administrative Agent nor the Required Lenders shall have become aware of any facts or conditions not previously known) which the Administrative Agent or the Required Lenders shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Funding Notice Material Adverse Effect;
(vi) no litigation by any entity (private or governmental) shall be pending or threatened in writing with respect to the Tranche C Term Loans for all purposes hereof).Credit Agreement, any other Credit Document or any other documentation executed in connection herewith and therewith or the transactions contemplated hereby and thereby, or which the Administrative Agent shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(cvii) Company the Administrative Agent shall have received payment from the Borrower, for the account of each Lender that executes and delivers a counterpart signature page to this Amendment prior to 10:00 A.M., New York City time, on February 14, 2014 (the “Revolver Consent Deadline”), a non-refundable consent fee payable in Dollars in an amount equal to 0.05% of the Commitment of each such existing Lender in effect as of the Third Amendment Effective Date and in connection with each new Lender, the rate separately agreed with such new Lender;
(viii) the Borrower shall have paid all fees reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed or paid by pursuant to Section 13.01 of the Company hereunder or under any other Credit Document.Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent; and
(dix) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and documents, information or agreements regarding Credit Parties and the Credit Agreement Borrower as the Agents or Lenders may Administrative Agent shall reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on precedent have been satisfied or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):waived:
(a) CompanyExcept as disclosed in filings made by the Company with the SEC, Holdingspress releases and other public disclosures prior to the date hereof, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2021.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) All material governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained.
(d) The Company shall have paid all accrued and invoiced fees and other amounts due and payable on or prior to expenses of the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders (including the accrued and invoiced fees and expenses of counsel to the Agent) to the extent invoiced prior to the Effective Date.
(e) On the Effective Date, the following statements shall be true and the Agent shall have received originally executed copies for the account of each Lender a certificate signed by a duly authorized officer of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably requestCompany, dated the Fourth Amendment Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date and otherwise the following, each dated the Effective Date, in form and substance reasonably satisfactory to Administration the Agent:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Effective Date.
(eii) Each Credit Party shall have obtained Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all material consents documents evidencing other necessary or advisable in connection corporate action with respect to this Agreement and the transaction contemplated by this Fourth AmendmentNotes.
(fiii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A customary opinion of counsel of the Company (which may be in-house counsel).
(g) The Agent and Lenders Company shall have received such other documents terminated the commitments, and information regarding Credit Parties paid in full all accrued and unpaid amounts, under the Company’s Credit Agreement dated as of August 15, 2018 (the Agents or “Existing Credit Agreement”). Each of the Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant that is a party to the conditions set forth in this Section II, all outstanding amounts Existing Credit Agreement hereby waives the requirement of prior notice of termination of the commitments under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationExisting Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Corning Inc /Ny)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 30, 2017 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Collateral Custodian, the Calculation Agent or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements, Requisite Lenders instruments, certificates and other documents listed on Schedule II have been duly executed by, and delivered to, the parties hereto and thereto;
(ii) all up‐front expenses and fees (including reasonable and documented out‐of‐pocket legal fees and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full;
(iii) the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all material respects (except that any representation qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) (as certified by the Borrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the Tranche C Term Loan Lenders other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(v) no action, proceeding or investigation has been instituted or, to the knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vi) the Borrower shall have indicated their consent obtained an investment grade rating (BBB‐ or higher) from an Acceptable Rating Agency, such as KBRA, and the Initial Lender shall have a received a copy of any rating letter issued in connection therewith; and
(vii) the Administrative Agent has received all documentation and other information requested by the execution and delivery Administrative Agent acting at the direction of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice Majority Lenders or required by regulatory authorities with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent Borrower and the Lenders shall have received originally executed copies of Calculation Agent under applicable “know your customer” and anti‐money laundering rules and regulations, including the favorable written opinion of AkinUSA PATRIOT Act, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise all in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of This Agreement (other than Section 12.6 hereof which shall be effective on the amendments set forth at Section I hereof is subject to date hereof) shall become effective on the satisfaction, or waiver, Business Day on which each of the following conditions on or before the date hereof precedent shall have been satisfied (such date, the "FOURTH AMENDMENT EFFECTIVE DATEEffective Date"):
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders Lender shall have received originally executed copies of the favorable written opinion of Akinevidence, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.Lender with respect to any filings required as a result of the completion of the transactions contemplated by the Merger Agreement or any amendments to the Information Certificate or the Schedules thereto, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) all requisite limited liability company action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including, without limitation, records of requisite limited liability company action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate company officers or governmental authorities;
(c) no Material Adverse Change shall have occurred since the date of Lender's latest field examination on December 9, 1998 and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have received, in form and substance reasonably satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgments by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral, in any case required as a result of the completion of the transactions contemplated by the Merger Agreement or any amendments to the Information Certificate or the Schedules hereto;
(e) Each Credit Party Lender shall have obtained all material consents necessary or advisable continue to be in connection with receipt of the transaction contemplated by this Fourth Amendment.evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, including certificates of insurance policies and/or endorsements naming Lender as loss payee;
(f) The Agent and Lenders Lender shall have received such other documents and information regarding Credit Parties an opinion letter of counsel to Borrower in the form of Schedule 4.1(f);
(g) the transactions contemplated by the Merger Agreement shall have been consummated in accordance with the Merger Agreement (and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans Lender shall be paid and satisfied in full and if the Company so requests, each Lender who has previously have received a Tranche A Term Loan Note or Tranche B Term Loan Note certificate, duly executed by a Responsible Officer, certifying that such transactions have so occurred);
(h) the other Financing Agreements and all instruments and documents hereunder and thereunder shall deliver such Note have been duly executed and delivered to the Company for cancellationLender, in form and substance satisfactory to Lender; and
(i) Borrower shall have used its best efforts to obtain a signed acknowledgment letter from each landlord currently a party to an Acceptable Third Party Agreement, in form and substance satisfactory to Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Chiquita Brands International Inc)
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Collateral Custodian, the Calculation Agent or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdings, Requisite Lenders all other Transaction Documents (other than the Administrative Agent Fee Letter and the Tranche C Term Loan Lenders shall Collateral Custodian Fee Letter) and all other agreements, instruments, certificates and other documents listed on Schedule II have indicated their consent by been duly executed by, and delivered to, the execution parties hereto and delivery of the signature pages hereof to the Administrative Agent.thereto;
(bii) Company shall have delivered to Administrative Agent a fully executed all up-front expenses and delivered Fourth Amendment Date Certificate fees (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees including reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses legal fees and any fees required under the Fee Letters) that are required to be reimbursed paid hereunder or paid by the Company hereunder or under any other Credit Document.Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full;
(diii) Administration Agent the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all material respects (except that any representation qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects as so qualified) (as certified by the Borrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the Lenders other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(v) no action, proceeding or investigation has been instituted or, to the knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders' sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vi) the Borrower shall have obtained an investment grade rating (BBB- or higher) from an Acceptable Rating Agency, such as KBRA, and the Initial Lender shall have a received originally executed copies a copy of any rating letter issued in connection therewith; and
(vii) the Administrative Agent has received all documentation and other information requested by the Administrative Agent acting at the direction of the favorable written opinion of AkinMajority Lenders or required by regulatory authorities with respect to the Borrower and the Calculation Agent under applicable "know your customer" and anti-money laundering rules and regulations, Gumpincluding the USA PATRIOT Act, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise all in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Carlyle Secured Lending III)
Conditions Precedent to Effectiveness. The effectiveness of This Amendment shall become effective on April 19, 2016 (the amendments set forth at Section I hereof is subject to the satisfaction“Fifth Amendment Effective Date”), or waiver, if each of the following conditions shall have been satisfied on or before prior to such date; provided that if the date hereof (following conditions are not satisfied by April 19, 2016, this Amendment shall not become effective and shall be of no force or effect with respect to the "FOURTH AMENDMENT EFFECTIVE DATE"):Credit Agreement:
(ai) Companythe Borrower, Holdingsthe Administrative Agent, Requisite Lenders each Issuing Lender and the Tranche C Term Loan Required Lenders shall have indicated their consent signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile, pdf or other electronic transmission) the execution and delivery of the signature pages hereof same to the Administrative Agent.;
(bii) Company the Administrative Agent shall have delivered received a favorable customary legal opinion of ▇▇▇▇▇ Day, counsel to the Credit Parties, addressed to the Administrative Agent a fully executed and delivered Fourth each of the Lenders party to the Credit Agreement on the Fifth Amendment Effective Date Certificate and dated the Fifth Amendment Effective Date covering such matters incidental to this Amendment and the transactions contemplated hereby as the Administrative Agent may reasonably request;
(iii) the Administrative Agent shall have received (A) true and complete copies of resolutions of the board of directors of the Borrower approving and authorizing the execution, delivery and performance of the Credit Agreement and the Credit Documents, in each case as modified by this Amendment, certified as of the Fifth Amendment Effective Date by an Authorized Representative and attested to by another Authorized Representative of the Borrower as being in full force and effect without modification or amendment and (B) good standing certificates for the Borrower from the jurisdiction in which the Borrower is organized;
(iv) all of the representations and warranties made pursuant to Section 3 hereof shall be deemed true and correct in all material respects on the Fifth Amendment Effective Date, both before and after giving effect to this Amendment, with the same effect as though such representations and warranties had been made on and as of the Fifth Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date);
(v) since January 2, 2016, nothing shall have occurred (and neither the Administrative Agent nor the Required Lenders shall have become aware of any facts or conditions not previously known) which the Administrative Agent or the Required Lenders shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Funding Notice Material Adverse Effect;
(vi) no litigation by any entity (private or governmental) shall be pending or threatened in writing with respect to the Tranche C Term Loans for all purposes hereof).Credit Agreement, any other Credit Document or any other documentation executed in connection herewith and therewith or the transactions contemplated hereby and thereby, or which the Administrative Agent shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(cvii) Company the Borrower shall have paid all fees reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed or paid by pursuant to Section 13.01 of the Company hereunder or under any other Credit Document.Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent;
(dviii) Administration Agent and substantially simultaneously with the Lenders shall have received originally executed copies Fifth Amendment Effective Date, (x) that certain Second Amendment to Credit Agreement in respect of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request2013 Credit Agreement, dated of even date herewith, and (y) the Fourth Amendment Effective Date and otherwise 2016 Term Loan Credit Agreement, dated of even date herewith, in each case, in form and substance reasonably satisfactory to Administration the Administrative Agent., shall have become effective pursuant to their respective terms; and
(eix) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Administrative Agent and Lenders shall have received such other documents and documents, information or agreements regarding Credit Parties and the Credit Agreement Borrower as the Agents or Lenders may Administrative Agent shall reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness of This Agreement shall become effective on the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, Effective Date so long as each of the following conditions precedent has been satisfied:
(i) no material adverse change shall have occurred in the assets, business or prospects of Loan Parties and their Subsidiaries determined on or before a consolidated basis since the date hereof of Agent’s latest field examination (not including for this purpose the "FOURTH AMENDMENT EFFECTIVE DATE"):
field review referred to in clause (ab) Company, Holdings, Requisite Lenders below) and the Tranche C Term Loan Lenders (ii) no change or event shall have indicated occurred which would impair the ability of Loan Parties and their consent by the execution and delivery Subsidiaries to perform their obligations hereunder or under any of the signature pages hereof other Financing Agreements to which they are parties or of any Agent Party to enforce the Administrative Agent.Obligations or realize upon the Collateral, taken as a whole;
(b) Company shall have the Excess Availability as determined by Agent (based on the Borrowing Base reflected in the most recent Borrowing Base Certificate delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which in accordance with Section 7.1(a)(i) herein), as of the Effective Date, shall be deemed not less than $40,000,000.00 after giving effect to (i) all Loans made or to be a Funding Notice made and the Letter of Credit Accommodations issued or to be issued prior to or in connection with respect to the Tranche C Term Loans for closing of the transactions hereunder, and (ii) payment of all purposes hereof).fees and expenses in connection with the transactions under this Agreement and the other Financing Agreements;
(c) Company Agent shall have paid received evidence, in form and substance satisfactory to Agent, that the Agent has a valid perfected first priority security interest in all fees of the Collateral subject to the senior liens and other amounts due encumbrances permitted hereunder;
(d) Agent shall be satisfied that no investigation, litigation or other proceedings shall be pending or threatened against any Loan Party or any Subsidiary of any Loan Party which could have a Material Adverse Effect in the reasonable determination of Agent;
(e) Term Loan Agent and payable Agent shall have received a certificate from the chief financial officer of the Parent dated as of the Effective Date certifying that (i) the Parent and (ii) Parent and its Subsidiaries, on or prior a consolidated basis, in each case after giving effect to the Fourth Amendment Effective Dateextensions of credit hereunder (including the Term Loans), includingare Solvent;
(f) Term Loan Agent and Agent shall have received, to the extent invoicedrequested, reimbursement or all documentation and other payment of information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act;
(g) the Financing Agreements and all out-of-pocket other instruments, documents, certificates, opinions, agreements, information and records listed on Schedule 4.1 shall have been duly executed and/or delivered to Agent, in form and substance satisfactory to Agent; and
(h) all fees and expenses required to be reimbursed or paid by on the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under terms of the Tranche A Term Loans Financing Agreements and Tranche B Term Loans the CSFB Engagement Letter shall be have been paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationby Borrowers.
Appears in 1 contract
Sources: Loan and Security Agreement (Remy International, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 27, 2014 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by An executed copy of this Fourth AmendmentAgreement from each party hereto.
(fg) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of Sections 2.01 and 2.13. Sections 2.01 and 2.13 of this Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject first date (the "Effective Date") on which the following conditions precedent have been satisfied:
(a) The Lenders shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and the Joint Venture Company, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and of each agreement or instrument relating to such structure or capitalization.
(b) There shall have occurred no Material Adverse Change since June 30, 1994.
(c) There shall exist no action, suit, investigation, litigation or proceeding affecting either Loan Party or any of their Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the satisfactionmatters described on Schedule 3.01(c) (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no adverse change in the status, or waiverfinancial effect on either Loan Party or any of their Subsidiaries, of the following conditions Disclosed Litigation from that described in the Pre-Commitment Information.
(d) All Capital Stock or other ownership interests of the Borrower and the Borrower's Subsidiaries shall be owned by the Guarantor or the Borrower or one or more of the Borrower's Subsidiaries, in each case free and clear of any Lien.
(e) The Lenders shall have completed a due diligence investigation of the Loan Parties and their Subsidiaries in scope, and with results, satisfactory to the Lenders, and nothing shall have come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe that the information provided by or on behalf of the Guarantor or before the Borrower to the Lenders prior to the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATEPre-Com mitment Information"):
(a) Companywas or has become misleading, Holdingsincorrect or incomplete in any material respect; without limiting the generality of the foregoing, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by been given such access to the execution management, records, books of account, contracts and delivery properties of the signature pages hereof Guarantor, the Borrower and their Subsidiaries as they shall have requested.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(g) The Lenders shall be reasonably satisfied with the amount, parties, terms and conditions of all insurance policies of the Borrower and the Guarantor.
(h) The Borrower shall have paid all accrued fees and expenses of the Administrative Agent, the Co-Agents and the Lenders (including the accrued fees and expenses of Shearman & Sterling, counsel to the Administrative AgentAgent and the Co-Agents).
(bi) Company The Administrative Agent shall have delivered received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance satisfactory to Administrative Agent a fully executed the Lenders (unless otherwise specified) and delivered Fourth Amendment Date Certificate (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower and the Guarantor approving this Agreement, the Notes and each other Loan Document to which shall be deemed it is or is to be a Funding Notice party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, the Notes and each other Loan Document.
(iii) A copy of a certificate of the Secretary of State of the State of Delaware, dated reasonably near the Effective Date, listing the charter of the Borrower and the Guarantor and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to the Borrower's or the Guarantor's charter on file in his office, (B) the Borrower and the Guarantor have paid all franchise taxes to the date of such certificate and (C) the Borrower and the Guarantor are duly incorporated and in good standing under the laws of the State of Delaware.
(iv) A certificate of the Borrower and the Guarantor, signed on behalf of the Borrower and the Guarantor by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of the Borrower or the Guarantor since the date of the Secretary of State's certificate referred to in Section 3.01(i)(iii), (B) a true and correct copy of the bylaws of the Borrower and the Guarantor as in effect on the Effective Date, (C) the due incorporation and good standing of the Borrower and the Guarantor as a corporation organized under the laws of the State of Delaware, and the absence of any proceeding for the dissolution or liquidation of the Borrower or the Guarantor, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date and (E) the absence of any event occurring and continuing that constitutes a Default.
(v) A certificate of the Secretary or an Assistant Secretary of the Borrower and the Guarantor certifying the names and true signatures of the officers of the Borrower and the Guarantor authorized to sign this Agreement, the Notes and each other Loan Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(vi) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection therewith.
(vii) Such financial, business and other information regarding each Loan Party and their respective Subsidiaries as the Lenders shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under ERISA and Welfare Plans, collective bargaining agreements and other arrangements with employees, annual financial statements dated June 30, 1994, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lenders' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Effective Date), pro forma financial statements as to the Guarantor and forecasts prepared by management of the Guarantor, in form and substance satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on a monthly basis for the first year following the Effective Date and on an annual basis for each year thereafter until the Termination Date.
(viii) A letter, in form and substance satisfactory to the Co-Agents, from the Guarantor to Ernst & Young, its independent certified public accountants, advising such accountants that the Co-Agents, the Administrative Agent and the Lenders have been authorized to exercise all rights of the Guarantor to require such accountants to disclose any and all financial statements and any other information of any kind that they may have with respect to the Tranche C Term Loans business, condition (financial or otherwise), operations, performance, properties or prospects of the Guarantor and its Subsidiaries and directing such accountants to comply with any reasonable request of the Administrative Agent or any Lender for all purposes hereof)such information.
(cix) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment Certified copies of all out-of-pocket expenses required to be reimbursed or paid by Material Contracts of the Company hereunder or under any other Credit DocumentBorrower, the Guarantor and their respective Subsidiaries.
(dx) Administration Agent A favorable opinion of Kaye, Scholer, Fierman, Hays & Handler, special counsel for the Borrower and the Lenders shall have received originally executed copies of the favorable written opinion of AkinGuarantor, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇in substantially th▇ ▇▇r t▇▇ ▇redit Parties, rm of Exhibit D hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(xi) A favorable opinion of Marschall I. Smith, dated Esq., General Counsel of the Fourth Amendment Effective Date Borrower and otherwise the Guarantor, in substantially the form of Exhib▇▇ ▇ ▇▇▇▇t▇ ▇▇▇ ▇▇ to such other matters as any Lender through the Administrative Agent may reasonably request.
(xii) A favorable opinion of Shearman & Sterling, counsel for the Co-Agents, in form and substance reasonably satisfactory to Administration Agentthe Co-Agents.
(ej) Each Credit Party On the Effective Date, the following statements shall be true and the Administrative Agent shall have obtained all material consents necessary received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in each Loan Document are correct on and as of the Effective Date, as though made on and as of such date other than any such representations or advisable warranties that, by their terms, refer to a date other than the date of such Borrowing or issuance; and
(ii) no event has occurred and is continuing that constitutes a Default.
(k) All accrued interest, fees and other amounts owing to the Existing Lenders, the Existing Issuing Banks, the Co-Agents and the Administrative Agent in connection with the transaction contemplated by this Fourth AmendmentExisting Credit Agreement shall have been paid in full.
(fl) The Agent and Lenders Borrower shall have received such other documents and information regarding Credit Parties notified each Lender and the Credit Agreement Administrative Agent in writing as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationproposed Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Imc Global Inc)
Conditions Precedent to Effectiveness. The effectiveness parties hereto agree that this Amendment shall not be effective until the satisfaction of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, each of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(a) Companythe Lender shall have received a copy of this Amendment duly completed, Holdings, Requisite Lenders executed and delivered by the Borrower and the Tranche C Term other Loan Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.Parties;
(b) Company the Lender shall have delivered received evidence of concurrent consummation of a related amendment to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (the credit agreement evidencing the U.S. Cellular SOFR Loan Facility, which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory acceptable to Administration Agent.the Lender;
(c) the Lender shall have received evidence of concurrent consummation of a related amendment to the TDS ▇▇▇▇▇ Fargo Credit Agreement, which shall be in form and substance reasonably acceptable to the Lender;
(d) the Lender shall have received evidence of concurrent consummation of a related amendment to the credit agreement evidencing the U.S. Cellular Revolving Loan Facility, which shall be in form and substance reasonably acceptable to the Lender;
(e) Each Credit Party the Lender shall have obtained all material consents necessary or advisable received evidence of concurrent consummation of a related amendment to the credit agreement evidencing the TDS CoBank Term Loan Facility, which shall be in connection with form and substance reasonably acceptable to the transaction contemplated by this Fourth Amendment.Lender;
(f) The Agent and Lenders the Lender shall have received evidence of concurrent consummation of a related amendment to the credit agreement evidencing the U.S. Cellular Term Loan Facility, which shall be in form and substance reasonably acceptable to the Lender;
(g) the Lender shall have received evidence of concurrent consummation of a related amendment to the credit agreement evidencing the U.S. Cellular Citibank Loan Facility, which shall be in form and substance reasonably acceptable to the Lender; and
(i) each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such other documents representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and information regarding Credit Parties correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement as shall be deemed to refer to the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationCredit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Telephone & Data Systems Inc /De/)
Conditions Precedent to Effectiveness. The effectiveness (a) This Agreement shall be effective with respect to the items addressed in the preliminary statements upon the Effective Date, and shall be effective with respect to all other matters on the Closing Date or the date of the amendments set forth at Section I hereof is subject applicable Amendment and no Lender shall be obligated to make any Advance hereunder from and after the satisfactionClosing Date, nor shall any Lender, the Collateral Custodian, the Servicer, the Account Bank or waiverthe Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, Requisite Lenders and delivered to, the parties hereto and thereto;
(ii) all up‐front expenses and fees (including reasonable legal fees and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at least three Business Days prior to the Closing Date shall have been paid in full;
(iii) the representations and warranties contained in Sections 4.01, 4.02 and 4.06 are true and correct (as certified by the Borrower);
(iv) As of the Closing Date, the Borrower had received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Lenders) in connection with the transactions contemplated by this Agreement and the Tranche C Term Loan Lenders other Transaction Documents and all applicable waiting periods shall have indicated their consent expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of the Lenders could reasonably be expected to have such effect;
(v) no action, proceeding or investigation shall have been instituted, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction or the consummation of the transactions contemplated hereby or thereby, or which, in the Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby; and
(vi) the Administrative Agent shall have received all documentation and other information requested by the execution and delivery Administrative Agent acting at the direction of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice Majority Lenders or required by regulatory authorities with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees Borrower and other amounts due the Servicer under applicable “know your customer” and payable on or prior to the Fourth Amendment Effective Dateanti‐money laundering rules and regulations, including, to without limitation, the extent invoicedUSA PATRIOT Act, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"“Seventh Amendment Effective Date”):
(a) Company, Holdings, Holdings and Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company Each Credit Party shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice obtained all material consents necessary or advisable in connection with respect to the Tranche C Term Loans for all purposes hereof)transaction contemplated by this Seventh Amendment.
(c) The Administrative Agent shall have received a certificate from an officer of the Company stating that as of the Seventh Amendment Effective Date, the representations and warranties contained in Section III herein and in the other Credit Documents are true, correct and complete in all respects on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true correct and complete in all respects on and as of such earlier date.
(d) The Administrative Agent shall have received a certificate from an officer of the Company stating that as of the Seventh Amendment Effective Date, no event has occurred and is continuing that would constitute an Event of Default or a Default.
(e) The Administrative Agent shall have received, for distribution to all Lenders who execute this Seventh Amendment, an amendment fee equal to 0.125% of such Lenders’ Revolving Commitments and outstanding Term Loans immediately prior to the Seventh Amendment Effective Date.
(f) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Seventh Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(dg) Administration Agent and the Lenders Holdings shall have received originally executed copies the gross proceeds from the Holdings Additional Equity Offering of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to not less than $40,000,000 and such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party proceeds shall have obtained all material consents necessary or advisable in connection with the transaction been applied as contemplated by this Fourth Seventh Amendment.
(fh) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 26, 2020 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyExcept as disclosed in filings made by the Company with the Securities and Exchange Commission, Holdingspress releases and other public disclosures prior to the date hereof, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2012.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Company shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued and invoiced fees and other amounts due and payable on or prior to expenses of the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders (including the accrued and invoiced fees and expenses of counsel to the Agent).
(f) On the Effective Date, the following statements shall be true and the Agent shall have received originally executed for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇▇▇▇▇▇ ▇. ▇r t▇▇ ▇redit Parties▇▇▇, as to such matters as Administrative Agent may reasonably requestSenior Vice President and General Counsel of the Company, dated substantially in the Fourth Amendment Effective Date and otherwise form of Exhibit E hereto.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance reasonably satisfactory to Administration the Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Corning Inc /Ny)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction"Effective Date") after it shall have been executed by the Borrowers, or waiverthe Administrative Agent, of each Initial Lender, each PI Lender and the Initial Issuing Bank and on which the following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since December 31, 2004.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting Paxar or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to adversely affect the Facilities or the consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and approvals necessary in connection with the Facilities and the other transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) Paxar shall have notified each Lender Party and the Administrative Agent in writing as to the proposed Effective Date.
(e) Paxar shall have paid all accrued fees and expenses of the Administrative Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Administrative Agent).
(f) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender Party a certificate signed by a duly authorized officer of Paxar dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Administrative Agent shall have received on or before the date hereof (Effective Date the "FOURTH AMENDMENT EFFECTIVE DATE"):following, each dated such day, in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender Party:
(ai) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery A copy of the signature pages hereof charter, by-laws, and other constituent documents of each Loan Party party to a Loan Document delivered on the Effective Date.
(ii) Certified resolutions of the Board of Directors of Paxar and each such other Loan Party and, to the extent appropriate, certified resolutions of the shareholders of any such Loan Party, in form and substance reasonably satisfactory to the Administrative Agent.
(biii) Company shall have delivered A certificate of the Secretary, Assistant Secretary or Managing Director of Paxar and each such other Loan Party certifying the names and true signatures of the officers of Paxar and such other Loan Party authorized to Administrative Agent a fully executed sign this Agreement and delivered Fourth Amendment Date Certificate (which shall be deemed the Notes and the other documents to be a Funding Notice with respect delivered hereunder and certifying that the charter, by-laws, constituent documents and resolutions referred to the Tranche C Term Loans for all purposes hereofin subclauses 3.01(g )(i) and (ii) are in full force and effect and have not been amended or modified.
(civ) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the A favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇▇▇▇▇ ▇. ▇r t▇▇ ▇redit Parties▇▇, Esq., General Counsel of Paxar, substantially in the form of Exhibit E hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(v) Favorable opinions of counsel for each Non-US Borrower and, dated the Fourth Amendment Effective Date and otherwise if applicable, each Foreign Guarantor, each in form and substance reasonably satisfactory to Administration the Administrative Agent.
(evi) Each Evidence satisfactory to the Administrative Agent of termination of the Existing Credit Party Agreement and that all amounts payable thereunder have been paid in full and all commitments thereunder have been terminated, except that the Existing Letters of Credit shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendmentbe deemed Letters of Credit hereunder.
(fvii) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and A Guaranty in substantially the Credit Agreement as form of the Agents or Lenders may reasonably request. Upon Subsidiary Guaranty duly executed by each Subsidiary Guarantor.
(viii) If applicable, a Guaranty in substantially the effectiveness form of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, Foreign Subsidiary Guaranty duly executed by each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationForeign Guarantor.
Appears in 1 contract
Sources: Credit Agreement (Paxar Corp)
Conditions Precedent to Effectiveness. The effectiveness of This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Collateral Custodian, the Facility Servicer or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements, Requisite Lenders instruments, certificates and other documents listed on Schedule II have been duly executed by, and delivered to, the parties hereto and thereto;
(ii) after giving effect to the consummation of the funding of the Initial Advance and payment of all reasonable and invoiced fees, costs and expenses in connection therewith, the Borrower shall have no material Indebtedness for borrowed money other than the Obligations and Permitted Liens;
(iii) all up-front expenses and fees (including reasonable legal fees and expenses and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters have been paid in full;
(iv) the representations contained in Sections 4.01 and 4.02 are true and correct in all material respects, except that any representation qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified (as certified by the Loan Parties);
(v) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Lenders) in connection with the transactions contemplated by this Agreement and the Tranche C Term Loan other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which in the reasonable judgment of the Lenders shall could reasonably be expected to have indicated their consent such effect;
(vi) no action, proceeding or investigation has been instituted, or to the Borrower’s knowledge, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, at the Majority Lenders’ discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vii) the Administrative Agent has received all documentation and other information requested by the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice or required by regulatory authorities with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent Borrower and the Lenders shall have received originally Facility Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, including a duly executed copies W-9 tax form (or such other applicable IRS tax form) of the favorable written opinion of AkinBorrower, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise all in form and substance reasonably satisfactory to Administration the Administrative Agent.;
(eviii) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment Collection Account has been established pursuant to the Account Control Agreement; and
(ix) the Borrower has obtained a valid participation interest in the Initial Portfolio Assets and all actions required to be taken or performed under Section 3.03 with respect to such participation interest in such Initial Portfolio Assets have been taken or satisfied. For purposes of determining whether the conditions set forth specified in this Section II3.01 have been satisfied on the Closing Date, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requestsby funding any Advance hereunder, each Lender who has previously received a Tranche A Term Loan Note shall be deemed to have received, consented to, approved or Tranche B Term Loan Note shall deliver such Note accepted, or to be satisfied with, each document or other matter required hereunder to be received, consented to or approved by or acceptable or satisfactory to the Company for cancellationAdministrative Agent or such Lender, as the case may be.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement shall be effective upon, and no Lender shall be obligated to make any Advance hereunder from and after the amendments set forth at Section I hereof is subject Closing Date, nor shall any Lender, the Collateral Custodian, the Servicer, the Account Bank or the Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, Requisite Lenders and delivered to, the parties hereto and thereto;
(ii) all up-front expenses and fees (including reasonable legal fees and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at least three Business Days prior to the Closing Date shall have been paid in full;
(iii) the representations and warranties contained in Sections 4.01, 4.02 and 4.06 are true and correct (as certified by the Borrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Lenders) in connection with the transactions contemplated by this Agreement and the Tranche C Term Loan Lenders other Transaction Documents and all applicable waiting periods shall have indicated their consent expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of the Lenders could reasonably be expected to have such effect;
(v) no action, proceeding or investigation shall have been instituted, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction or the consummation of the transactions contemplated hereby or thereby, or which, in the Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby; and
(vi) the Administrative Agent shall have received all documentation and other information requested by the execution and delivery Administrative Agent acting at the direction of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice Majority Lenders or required by regulatory authorities with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees Borrower and other amounts due the Servicer under applicable “know your customer” and payable on or prior to the Fourth Amendment Effective Dateanti-money laundering rules and regulations, including, to without limitation, the extent invoicedUSA PATRIOT Act, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) Company, Holdings, Requisite Lenders The Borrower shall have notified each Lender and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof Agent in writing as to the Administrative Agentproposed Effective Date.
(b) Company The Borrower shall have delivered to Administrative paid all accrued fees and expenses of the Agent a fully executed and delivered Fourth Amendment Date Certificate the Lenders (which shall be deemed to be a Funding Notice with respect including the accrued fees and expenses of counsel to the Tranche C Term Loans for all purposes hereofAgent).
(c) Company shall have paid all fees and other amounts due and payable on or prior to On the Fourth Amendment Effective Date, includingthe following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) The representations and warranties contained in Section 4.01 are correct in all material respects (other than any representation or warranty qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of the Effective Date, except to the extent invoicedany of such representations and warranties refers to an earlier date, reimbursement in which case such representation and warranty shall be true and correct in all material respects (other than any representation or warranty qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of such earlier date, and (ii) After giving effect to the incurrence of the Loans on the Effective Date and the other payment transactions contemplated hereby, no event has occurred and is continuing that constitutes a Default or Event of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit DocumentDefault.
(d) Administration The Agent and the Lenders shall have received originally executed copies of on or before the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise the following, each dated such day, in form and substance reasonably satisfactory to Administration the Agent.: (
i) Counterparts of this Agreement, duly executed and delivered by each of the Lenders, the Borrower and the Agent (e) Each Credit Party or in the case of any such party as to which an executed counterpart shall not have been received, the Agent shall have obtained all material consents necessary received, in form reasonably satisfactory to it, telecopy, email or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received other written confirmation from such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness party of its execution of a counterpart of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationAgreement).
Appears in 1 contract
Sources: Credit Agreement (Dollar Tree, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Collateral Custodian, the Calculation Agent or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdings, Requisite Lenders all other Transaction Documents (other than the Administrative Agent Fee Letter and the Tranche C Term Loan Lenders shall Collateral Custodian Fee Letter) and all other agreements, instruments, certificates and other documents listed on Schedule II have indicated their consent by been duly executed by, and delivered to, the execution parties hereto and delivery of the signature pages hereof to the Administrative Agent.thereto;
(bii) Company shall have delivered to Administrative Agent a fully executed all up-front expenses and delivered Fourth Amendment Date Certificate fees (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees including reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses legal fees and any fees required under the Fee Letters) that are required to be reimbursed paid hereunder or paid by the Company hereunder or under any other Credit Document.Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full;
(diii) Administration Agent the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all material respects (except that any representation qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) (as certified by the Borrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the Lenders other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(v) no action, proceeding or investigation has been instituted or, to the knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vi) the Borrower shall have obtained an investment grade rating (BBB- or higher) from an Acceptable Rating Agency, such as KBRA, and the Initial Lender shall have a received originally executed copies a copy of any rating letter issued in connection therewith; and
(vii) the Administrative Agent has received all documentation and other information requested by the Administrative Agent acting at the direction of the favorable written opinion of AkinMajority Lenders or required by regulatory authorities with respect to the Borrower and the Calculation Agent under applicable “know your customer” and anti-money laundering rules and regulations, Gumpincluding the USA PATRIOT Act, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise all in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Fourth Amendment and Joinder to Loan and Servicing Agreement (Carlyle Secured Lending, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyExcept as disclosed in filings with the Securities and Exchange Commission prior to the date hereof, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2017.
(b) Company shall have delivered to Administrative Agent a fully executed Except as disclosed in filings with the Securities and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect Exchange Commission prior to the Tranche C Term Loans for all purposes date hereof), there shall exist no action, suit, investigation, litigation or proceeding affecting the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the borrowing contemplated hereunder.
(c) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Company shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued fees and other amounts due expenses of the Agent and payable the Lenders (including the accrued fees and expenses of counsel to the Agent) to the extent invoiced at least three Business Days prior to the Effective Date and required to be paid on or prior to the Fourth Amendment Effective Date.
(f) On the Effective Date, includingthe following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, to dated the extent invoicedEffective Date, reimbursement or other payment stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects (except such representations that are qualified by materiality, which shall be correct in all respects) on and as of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit DocumentEffective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(dg) Administration The Agent and the Lenders shall have received originally executed copies of on or before the favorable written opinion of AkinEffective Date the following, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, each dated the Fourth Amendment Effective Date and otherwise Date, in form and substance reasonably satisfactory to Administration the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes of the Company to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.15.
(ii) Certified copies of the resolutions or other evidence of authority of the Board of Directors of the Company approving this Agreement and the Notes to be delivered by it, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes to be delivered by it and the other documents to be delivered by it hereunder.
(iv) A customary opinion of the associate general counsel of the Company, substantially in the form of Exhibit D hereto.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance reasonably satisfactory to the Agent.
(eh) Each All amounts owing by the Borrowers under the Existing Credit Party Agreement shall have obtained all material consents necessary been, or advisable in connection concurrently with the transaction contemplated by this Fourth AmendmentEffective Date hereunder shall be, paid in full.
(fi) The To the extent reasonably requested reasonably in advance of the Effective Date by any of the Agent, any Arranger or the Lenders, the Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant received, prior to the conditions set forth in this Section IIEffective Date, all outstanding amounts documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and Patriot Act.
(ii) At least five (5) days prior to the Effective Date, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver, to each Lender that so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note Beneficial Ownership Certification in relation to the Company for cancellationCompany.
Appears in 1 contract
Sources: Credit Agreement (At&t Inc.)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof this Agreement is subject to the satisfaction, or waiver, condition precedent that the Administrator and each Purchaser Agent shall (x) be reasonably satisfied that the Administrator and each of the following conditions other Secured Parties shall have protections provided for in the Interim Order and, to the extent then entered, the Final Order, including the protection of Section 364(e) of the Bankruptcy Code with respect to any priority or lien granted or debt incurred pursuant to said Interim Order or Final Order and (y) have received, on or before the date hereof hereof, each of the following, each in form and substance (including the "FOURTH AMENDMENT EFFECTIVE DATE"):date thereof) reasonably satisfactory to the Administrator and each Purchaser Agent:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery each of the signature pages hereof documents, agreements (in fully executed form), opinions of counsel, certificates and other deliverables listed on the closing memorandum attached as Annex F hereto, in each case, in form and substance acceptable to the Administrative Agent.Administrator;
(b) Company shall have delivered to Administrative Agent a fully executed evidence of payment by the Seller of all accrued and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect unpaid fees, costs and expenses to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts extent then due and payable on or prior to the Fourth Amendment Effective Datedate hereof, includingincluding any such costs, fees and expenses arising under or referenced in Section 6.4 of the Agreement (as amended hereby) (including all attorney fees that have been invoiced at least one (1) Business Day prior to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid date that the Interim Order is entered by the Company hereunder Bankruptcy Court);
(c) a copy of the Interim Order entered by the Bankruptcy Court that is in full force and effect and has not been vacated or under any other Credit Document.reversed, is not subject to a stay, and has not been modified or amended (except for modifications or amendments approved in writing by the Administrator and the Majority Purchaser Agents, in each case, acting in their reasonable discretion); and
(d) Administration Agent evidence that (i) all “first day orders” and all related pleadings intended to be entered on or prior to the Lenders entry of the Interim Order (including “a cash management order”) shall have received originally executed copies of been entered by the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may Bankruptcy Court and shall be reasonably request, dated the Fourth Amendment Effective Date and otherwise satisfactory in form and substance to the Administrator and (ii) forms of “second day orders” filed but not yet entered shall be reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent form and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant substance to the conditions set forth in this Section IIAdministrator, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note it being understood that drafts approved by counsel to the Company for cancellationAdministrator prior to the Filing Date are reasonably satisfactory.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cloud Peak Energy Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this --------------------------------------------- Agreement. This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, "EFFECTIVE DATE") on which all of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent shall have been satisfied:
(a) CompanyThe Lenders shall be reasonably satisfied with (i) the organizational and legal structure and capitalization of Fox Kids and Holdings and (ii) all changes in the organizational and legal structure and capitalization of each of the other Loan Parties and their respective Subsidiaries since the Phase II Closing Date (including, in the case of clauses (i) and (ii) of this subsection (a), without limitation, the terms and conditions of the Constitutive Documents and each class of Equity Interests in Fox Kids, Holdings, Requisite Lenders each such other Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization). All of the Tranche C Term Loan Lenders Related Documents shall have indicated their consent be in full force and effect in the form received by the execution and delivery of the signature pages hereof Lenders on or prior to the Administrative AgentEffective Date.
(b) Company All of the Governmental Authorizations, and all of the consents, approvals and authorizations of, notices and filings to or with, and other actions by, any other Person necessary in connection with any aspect of the Transaction, any of the Loan Documents or the Related Documents or any of the other transactions contemplated thereby shall have delivered been obtained (without the imposition of any conditions that are not reasonably acceptable to Administrative Agent a fully executed the Lenders) and delivered Fourth Amendment Date Certificate (which shall remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no Requirement of Law shall be deemed to be a Funding Notice with respect to applicable in the Tranche C Term Loans for all purposes hereof)reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon any aspect of the Transaction, any of the Loan Documents or the Related Documents or any of the other transactions contemplated thereby.
(c) Company Before giving effect and immediately after giving pro forma effect to the Transaction, no material adverse change shall have paid all fees occurred in the business, condition (financial or otherwise), operations, performance, properties or prospects of Fox Kids and other amounts due and payable on or prior to the Fourth Amendment Effective Dateits Subsidiaries, includingtaken as a whole, to the extent invoicedsince December 31, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document1996.
(d) Administration Agent There shall exist no action, suit, investigation, litigation, arbitration or proceeding pending or, to the best knowledge of Holdings and each of the Borrowers, threatened against or affecting any of the Loan Parties or any of their respective Subsidiaries or any of the property or assets thereof in any court or before any arbitrator or by or before any Governmental Authority of any kind (i) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (ii) in which there is a reasonable likelihood of an adverse determination and which purports to affect the legality, validity, binding effect or enforceability of any aspect of the Transaction, any of the Loan Documents or the Related Documents or any of the other transactions contemplated thereby.
(e) Each aspect of the Transaction shall have been consummated or shall be consummated on the Effective Date in compliance with all applicable Requirements of Law. All of the Collateral shall be owned by one or more of the Loan Parties, in each case free and clear of any Lien, other than the liens and security interests created under the Loan Documents; and the Administrative Agent, on behalf of the Secured Parties, shall have a valid and perfected first priority lien on and security interest in all of the Collateral. All of the filings, recordations and searches necessary or desirable in connection with such liens and security interests shall have been duly made, and all filing and recording fees and taxes shall have been duly paid.
(f) All of the Senior Notes Documents shall be on terms and conditions reasonably satisfactory to the Lenders; and each of the Lenders shall have received originally executed copies a copy of the favorable written opinion Final Offering Memorandum at least two Business Days prior to the Effective Date. Fox Kids shall have received at least $725,000,000 in gross proceeds from the issuance and sale of Akinthe Senior Notes, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as from which at least $615,000,000 of such gross proceeds shall have been used to such matters as Administrative Agent may reasonably request, dated permanently repay Existing Advances outstanding on the Fourth Amendment Effective Date and accrued and unpaid interest thereon and the remainder of which shall have been used or shall be used to pay fees and expenses incurred in connection with the consummation of the Transaction and to repay outstanding principal under, and accrued and unpaid interest on, the Existing NAHI Subordinated Notes. After giving effect to the Transaction and all of the Borrowings to be made on the Effective Date, the amount of the aggregate Unused Revolving Credit Commitments shall be at least $75,000,000.
(g) The representations and warranties contained in each of the Loan Documents shall be correct in all material respects on and as of the Effective Date, before and after giving effect to the Borrowings to be made on the Effective Date and to the application of proceeds therefrom, as though made on and as of such date (other than any such representation and warranty that, by its terms, refers to a specific date other than the Effective Date, in which case, as of such specific date). No event shall have occurred and be continuing, or shall occur as a result of any of the Borrowings to be made on the Effective Date or the application of proceeds therefrom, that would constitute a Default.
(h) All of the accrued reasonable fees and expenses of the Agents and the Lenders (including, without limitation, all of the accrued reasonable fees and expenses of counsel for the Administrative Agent and local counsel for the Lenders) that are required to be paid by Fox Kids or any of its Affiliates shall have been paid in full.
(i) The Administrative Agent shall have received on or before the Effective Date the following, each dated such date (unless otherwise specified), in form and substance reasonably satisfactory to Administration Agentthe Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each of the Lenders:
(i) The Revolving Credit Notes, payable to the order of the Revolving Credit Lenders, and the Term Notes, payable to the order of the Term Lenders, respectively.
(eii) Each Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each of the Loan Parties approving each of the Loan Documents and the Related Documents to which it is or is to be a party, the consummation of each aspect of the Transaction involving or affecting such Loan Party and the other transactions contemplated by any of the foregoing, and of all documents evidencing necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to any of the Loan Documents or the Related Documents to which it is or is to be a party, the consummation of any aspect of the Transaction involving or affecting such Loan Party or any of the other transactions contemplated by any of the foregoing.
(iii) A copy of all of the Constitutive Documents of Holdings, and each amendment thereto, certified (as of a date reasonably near the Effective Date) as being a true and complete copy thereof by the Secretary of State of the State of Delaware.
(iv) A copy of a certificate of the Secretary of State of the State of Delaware, dated reasonably near the Effective Date, listing the operating agreement (or similar Constitutive Document) of Holdings and each amendment thereto on file in the office of such Secretary of State and certifying that (A) such amendments are the only amendments to the operating agreement (or similar Constitutive Document) of Holdings on file in its office, (B) Holdings has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) Holdings is duly organized and is in good standing under the laws of the State of Delaware.
(v) A copy of the certificate of the Secretary of State (or the equivalent Governmental Authority) of each jurisdiction in which Holdings is qualified or licensed as a foreign limited liability company, in each case dated reasonably near the Effective Date and stating that Holdings is duly qualified and in good standing as a foreign limited liability company in such jurisdiction and has filed all annual reports required to be filed, and has paid all franchise taxes (or the equivalent thereof) required to be paid, in such jurisdiction to the date of such certificate.
(vi) A certificate of each of the Loan Parties, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or an Assistant Secretary (or persons performing similar functions), dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to:
(A) the absence of any amendments to the certificate or articles of incorporation (or similar Constitutive Document) of such Loan Party since the date of the Secretary of State's (or equivalent Governmental Authority's) certificate delivered pursuant to Section 3.01(i)(iv) of the Existing Credit Agreement, or any steps taken by the board of directors (or persons performing similar functions) or the shareholders, partners, members or equivalent persons of such Loan Party to effect or authorize any further amendment, supplement or other modification thereto;
(B) the accuracy and completeness of the bylaws (or similar Constitutive Documents) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Loan Party referred to in clause (ii) of this Section 3.01(i) were adopted and on the Effective Date (a copy of which shall have obtained be attached to such certificate);
(C) the due organization and good standing of such Loan Party as a Person organized under the laws of the jurisdiction of its organization, and the absence of any proceeding (either pending or contemplated) for the dissolution, liquidation or other termination of the existence of such Loan Party or any of their respective Subsidiaries;
(D) since December 31, 1996, the absence of any change in the jurisdiction of organization of such Loan Party, any merger, consolidation or other similar transaction directly or indirectly involving such Loan Party or any issuance or sale of any Equity Interests in such Loan Party, except for (i) the Merger and (ii) the issuance of all material consents necessary or advisable of the Equity Interests in Holdings to Fox Kids in connection with the transaction contemplated formation of Holdings on October 21, 1997;
(E) the legal and beneficial ownership by this Fourth Amendmentsuch Loan Party of all of the Collateral in which it is purported to have granted a lien and security interest to the Administrative Agent, on behalf of the Secured Parties, under the Collateral Documents, free and clear of all Liens, except for the liens and security interests created under the Loan Documents;
(F) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Effective Date, before and after giving effect to the Borrowings to be made on the Effective Date and to the application of proceeds therefrom; and
(G) the absence of any event occurring and continuing, or resulting from any of the Borrowings to be made on the Effective Date or the application of proceeds therefrom, that would constitute a Default.
(fvii) The A certificate of the Secretary or an Assistant Secretary (or a person performing similar functions) of each of the Loan Parties certifying the names and true signatures of the officers, partners, members or equivalent persons of such Loan Party authorized to sign each of the Loan Documents to which it is or is to be a party and the other agreements, instruments and documents to be delivered hereunder and thereunder.
(viii) A pledge and assignment agreement, in substantially the form of Exhibit D-1 hereto (together with each Pledge Agreement Supplement and each other pledge agreement, assignment agreement (or other similar document) delivered pursuant to Section 5.02(j), in each case as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01, the "PLEDGE AND ASSIGNMENT AGREEMENT"), duly executed by each of the Loan Parties, together with (unless otherwise delivered to the Administrative Agent, in form and substance reasonably satisfactory to the Lenders, prior to the Effective Date):
(A) certificates representing the Initial Pledged Interests referred to therein, accompanied by undated stock powers or other appropriate powers, duly executed in blank;
(B) instruments evidencing the Initial Pledged Indebtedness referred to therein, duly endorsed in blank;
(C) proper financing statements (Form UCC-1 or a comparable form) or amendments to existing financing statements (Form UCC-3 or a comparable form) or the equivalent thereof under the Uniform Commercial Code (or any similar Requirements of Law) of all jurisdictions that may be necessary or that the Administrative Agent may reasonably deem desirable in order to perfect and protect the liens and security interests created or purported to be created under the Pledge and Assignment Agreement, covering the Collateral described therein, in each case completed in a manner satisfactory to the Lenders shall and duly executed by the applicable Loan Party;
(D) each of the Cash Collateral Account Letters, duly executed by the applicable Borrower and Citibank; and
(E) evidence that all of the other actions (including, without limitation, the completion of all of the other recordings and filings of or with respect to the Pledge and Assignment Agreement) that may be necessary or that the Administrative Agent may reasonably deem desirable in order to perfect and protect the liens and security interests created under the Pledge and Assignment Agreement have received such been taken or will be taken in accordance with the terms of the Loan Documents.
(A) An amended and restated memorandum of deposit of shares of equity interests, in substantially the form of Exhibit D-2 hereto (as further amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01, the "U.K./SABAN U.K. PLEDGE AGREEMENT"), duly executed by Saban, and (B) an amended and restated memorandum of deposit of shares of equity interests, in substantially the form of Exhibit D-3 hereto (as further amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01, the "U.K./FKE PLEDGE AGREEMENT"), duly executed by each of FKE Holdings, Fox Kids Network and Fox Kids Europe Limited.
(x) A guarantee, in substantially the form of Exhibit E-1 hereto (as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01, the "FOX KIDS GUARANTEE"), duly executed by Fox Kids.
(xi) An amended and restated guarantee, in substantially the form of Exhibit E-2 hereto (together with each Guarantee Supplement delivered pursuant to Section 5.02(j), in each case as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and Section 9.01, the "SUBSIDIARIES GUARANTEE"), duly executed by each of the wholly owned Domestic Subsidiaries and each of the other Subsidiaries of Holdings that are to constitute Restricted Subsidiaries on the Effective Date.
(xii) An assumption agreement, in substantially the form of Exhibit F hereto (the "ASSUMPTION AGREEMENT"), duly executed by Fox Kids and IFE.
(xiii) Certified copies of all of the Related Documents, all of the Senior Notes Documents and all of the agreements, instruments and other documents evidencing or setting forth the terms and information regarding Credit conditions of the Surviving Indebtedness that is outstanding or has commitments for the extension of credit on the Effective Date in an aggregate amount of at least $1,000,000, in each case duly executed by each of the parties thereto.
(xiv) Certified copies of (A) each of the employment and other compensation agreements with each senior executive officer of any of the Loan Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.effect o
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof this Agreement is subject to the satisfaction, or waiver, satisfaction of the following conditions on precedent: The Lender Parties shall be reasonably satisfied with the organizational and legal structure and capitalization of each Loan Party and each of its Subsidiaries (including, without limitation, the terms and conditions of the Constitutive Documents and each class of Equity Interests in the Borrower and each such Subsidiary and of each agreement or before instrument relating to such structure or capitalization). All of the date hereof (Governmental Authorizations, and all of the "FOURTH AMENDMENT EFFECTIVE DATE"):
(a) Companyconsents, Holdingsapprovals and authorizations of, Requisite Lenders notices and filings to or with, and other actions by, any other Person necessary in connection with the Tranche C Term execution, delivery or performance of this Agreement, any of the Loan Lenders Documents or any of the other transactions contemplated thereby shall have indicated their consent been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no Requirement of Law shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the execution, delivery or performance of this Agreement, any of the Loan Documents or any of the other transactions contemplated thereby. Before giving effect and immediately after giving pro forma effect to the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company this Agreement, no Material Adverse Change shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which occurred since December 31, 2005. There shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on exist no action, suit, investigation, litigation, arbitration or prior to the Fourth Amendment Effective Date, includingproceeding pending or, to the extent invoicedbest knowledge of the Borrower, reimbursement threatened against or affecting the Borrower or any of its Subsidiaries or any of the property or assets thereof in any court or before any arbitrator or by or before any Governmental Authority of any kind (i) that, either individually or in the aggregate, is reasonably expected to have a Material Adverse Effect or (ii) which purports to affect the legality, validity, binding effect or enforceability of this Agreement, any of the Loan Documents or any of the other payment transactions contemplated thereby. The execution and delivery of this Agreement shall have been consummated or shall be consummated on the Effective Date in compliance with all out-of-pocket applicable Requirements of Law. All of the fees and expenses of the Agents that are required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(dBorrower pursuant to Section 2.08(c) Administration shall have been or, concurrently with the effectiveness of this Agreement on the Effective Date shall be, paid in full. The Administrative Agent and the Lenders shall have received originally executed copies of on or before the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise the following in form and substance reasonably satisfactory to Administration Agent.
it (eunless otherwise specified): The Notes, (if any) Each payable to the order of the Lenders. Certified copies of the resolutions of the board of directors (or Persons performing similar functions) of each Loan Party approving the execution, delivery and performance of this Agreement and each of the Loan Documents to which it is or is to be a party, and of all documents evidencing necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to the execution, delivery and performance of this Agreement and any of the Loan Documents to which it is or is to be a party. A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each Loan Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) and certifying (A) that such amendments are the only amendments to such Person's certificate or articles of incorporation (or similar Constitutive Document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. A certificate of the Secretary or an Assistant Secretary (or a Person performing similar functions) of each Loan Party certifying as to: the absence of any amendments to the certificate or articles of incorporation (or similar Constitutive Document) of such Loan Party since the date of the Secretary of State's (or equivalent Governmental Authority's), or the Secretary's or Assistant Secretary's (or equivalent person's) certificate referred to in clause (iv) of this Section 3.01(g), or any steps taken by the board of directors (or persons performing similar functions) or the shareholders, partners, members or equivalent persons of such Loan Party to effect or authorize any further amendment, supplement or other modification thereto; the accuracy and completeness of the bylaws (or similar Constitutive Documents) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Loan Party referred to in clause (ii) of this Section 3.01(g) were adopted and on the Effective Date (a copy of which shall be attached to such certificate); and the names and true signatures of the officers of such Loan Party authorized to sign each of the Loan Documents to which it is or is to be a party and the other agreements, instruments and documents to be delivered hereunder and thereunder. A guarantee, substantially in the form of Exhibit F hereto (the "Subsidiaries Guarantee"), duly executed by each of the Domestic Subsidiaries that are Material Subsidiaries other than any such Subsidiary that is subject to regulation under Medicare Part D as a prescription drug plan or under state insurance regulations. Copies, certified by a Responsible Officer of the Borrower, of (A) the audited Consolidated financial statements of the Borrower and its Subsidiaries for the Fiscal Year ended December 31, 2005, accompanied by an unqualified opinion of KPMG, LLP, independent accountants of the Borrower, and (B) forecasts prepared by management of the Borrower, in form and substance reasonably satisfactory to the Lender Parties, of balance sheets, income statements on an annual basis and cash flow statements for the Fiscal Year in which the Effective Date occurs and on an annual basis for each Fiscal Year thereafter through the scheduled Termination Date. A duly completed and executed Notice of Borrowing for each Borrowing to be made on the Effective Date and Notice of Issuance for each Letter of Credit Party shall have obtained all material consents necessary or advisable to be issued on the Effective Date. A favorable opinion of King & Spalding, counsel for the Loan Parties, in connection with substantially the transaction contemplated by this Fourth Amendment.
(f) The Agent form of Exhibit D hereto, and Lenders shall have received addressing such other documents and information regarding Credit matters as any of the Lender Parties and through the Credit Agreement as the Agents or Lenders Administrative Agent may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, That all outstanding amounts due and payable under the Tranche A Term Loans and Tranche B Term Loans Existing Credit Agreement shall be have been paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationthat all commitments thereunder have been terminated.
Appears in 1 contract
Sources: Credit Agreement (Caremark Rx Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 29, 2018 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective, and the obligations of the amendments set forth at Section I hereof is subject Lenders to make Revolving Credit Advances and of the satisfactionIssuing Lenders to issue Letters of Credit hereunder shall become effective, or waiver, on and as of the first date (the “Effective Date”) on which the following conditions on precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since September 30, 2010.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters disclosed in the SEC Reports prior to the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):
“Disclosed Litigation”) or (aii) Companypurports to affect the legality, Holdingsvalidity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by been no change in the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall Disclosed Litigation that would have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof)Material Adverse Effect.
(c) Company All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have paid all fees and other amounts due and payable on or prior been obtained (without the imposition of any conditions that are not acceptable to the Fourth Amendment Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid, or will pay with the initial Advance on the Effective Date, all accrued fees and expenses of the Agent and the Lenders (including, to the extent invoiced, reimbursement or other payment the reasonable and documented accrued fees and expenses of all out-of-pocket expenses required counsel to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment).
(f) The On the Effective Date, the following statements shall be true and the Agent and Lenders shall have received a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to a Material Adverse Effect shall be correct in all respects) on and as of the Effective Date,
(ii) No Material Adverse Change has occurred since September 30, 2010, and
(iii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Revolving Credit Notes and the Swing Line Note) in sufficient copies for each Lender:
(i) Either (x) a counterpart of this Agreement signed on behalf of the Agent, the Borrower and each Initial Lender or (y) evidence satisfactory to the Administrative Agent (which may include an electronic transmission) that such party has signed a counterpart of this Agreement.
(ii) The Revolving Credit Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17, and a Swing Line Note to the order of the Swing Line Lender to the extent requested by the Swing Line Lender.
(iii) Such documents and certificates as the Agent may reasonably request relating to the organization, existence and good standing of the Company.
(iv) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(v) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(vi) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower, substantially in the form of Exhibit D hereto and as to such other documents and information regarding Credit Parties and matters as any Lender through the Credit Agreement as the Agents or Lenders Agent may reasonably request. Upon .
(h) The Borrower shall have terminated the effectiveness commitments of the lenders and repaid or prepaid all of the obligations under (or shall have provided for the repayment or prepayment thereof with the proceeds of the initial Revolving Credit Borrowing and Swing Line Advances to be made hereunder on the Effective Date), the credit facility listed on Schedule 3.01(h) hereto, and each of the Lenders that is a party to any such credit facility hereby waives, upon execution of this Fourth Amendment pursuant Agreement, any notice required by said credit facility relating to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationtermination of commitments thereunder.
Appears in 1 contract
Sources: Credit Agreement (Ugi Utilities Inc)
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Collateral Custodian, the Calculation Agent or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements, Requisite Lenders instruments, certificates and other documents listed on Schedule II have been duly executed by, and delivered to, the Tranche C Term Loan Lenders shall have indicated their consent by the execution parties hereto and delivery of the signature pages hereof to the Administrative Agent.thereto;
(bii) Company shall have delivered to Administrative Agent a fully executed all up-front expenses and delivered Fourth Amendment Date Certificate fees (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees including reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses legal fees and any fees required under the Fee Letters) that are required to be reimbursed paid hereunder or paid by the Company hereunder or under any other Credit Document.Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full;
(diii) Administration Agent the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all material respects (except that any representation qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) (as certified by the Borrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the Lenders other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(v) no action, proceeding or investigation has been instituted or, to the knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vi) the Borrower shall have obtained an investment grade rating (BBB- or higher) from a Nationally Recognized Statistical Rating Organization, such as ▇▇▇▇▇ Bond Rating Agency, and the Initial Lender shall have a received originally executed copies a copy of any rating letter issued in connection therewith; and -49-
(vii) the Administrative Agent has received all documentation and other information requested by the Administrative Agent acting at the direction of the favorable written opinion of AkinMajority Lenders or required by regulatory authorities with respect to the Borrower and the Calculation Agent under applicable “know your customer” and anti-money laundering rules and regulations, Gumpincluding the USA PATRIOT Act, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise all in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 30, 2023 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness parties hereto agree that this Amendment shall not be effective until the satisfaction (or waiver by the Administrative Agent and the Existing Lenders) of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, each of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(a) Companythe Administrative Agent shall have received a copy of this Amendment duly completed, Holdingsexecuted and delivered by the Existing Lenders, Requisite Lenders the Borrower and the Tranche C Term other Loan Lenders Parties;
(b) the Administrative Agent shall have indicated their consent by receive evidence of concurrent consummation of a related amendment to the execution Parent Revolving Credit Agreement, which shall be in form and delivery of the signature pages hereof substance reasonably acceptable to the Administrative Agent.;
(c) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to the Existing Revolving Credit Agreement, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(d) the Administrative Agent shall receive evidence of concurrent consummation of a related amendment to that certain Senior Secured Credit Agreement, dated as of September 28, 2023 (and as amended, restated, supplemented or otherwise modified from time to time), by and among the Parent, the lenders from time to time party thereto and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent, which shall be in form and substance reasonably acceptable to the Administrative Agent;
(e) each of the representations and warranties made in this Amendment shall be true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the Amendment Effective Date (as defined below), both before and after giving effect to the amendments contemplated by this Amendment as if such representations and warranties were being made on and as of the Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and the representations and warranties contained in subsections (a) and (b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement;
(f) the Administrative Agent shall have received 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 Amendment to which such Loan Party is a party or is to be a Funding Notice with respect party and such documents and certifications as the Administrative Agent may reasonably require to the Tranche C Term Loans for all purposes hereof).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 organization;
(cg) Company as of the Amendment Effective Date and immediately after giving effect thereto, no Default shall have occurred and be continuing;
(h) the Borrower shall have paid (i) all reasonable and out-of-pocket fees and expenses for which invoices have been presented at least two (2) Business Days prior to the Amendment Effective Date (including the reasonable and documented out-of-pocket fees, disbursements and other amounts due charges of one firm of outside counsel) and payable (ii) all other compensation required to be paid on or prior to the Fourth Amendment Effective Date pursuant to (x) that certain Engagement Letter, dated as of March 27, 2025 (the “Engagement Letter”), between the Borrower, the Toronto-Dominion Bank, New York Branch, TD Securities (USA) LLC, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Securities, LLC and Citigroup Global Markets Inc. and (y) any fee letter entered into between the Borrower and any Lead Arranger (as defined in the Engagement Letter) in connection with the transactions contemplated by this Amendment; and
(i) at least three (3) Business Days prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by Lead Arrangers (as defined in the Company hereunder or under any other Credit Document.
(dEngagement Letter) Administration Agent and the Lenders shall have received originally executed copies of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the favorable written opinion of AkinUSA PATRIOT Act and a Beneficial Ownership Certification in relation to the Borrower and each Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as that is requested at least ten (10) Business Days prior to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.Date
Appears in 1 contract
Sources: Senior Term Loan Credit Agreement (United States Cellular Corp)
Conditions Precedent to Effectiveness. The effectiveness of This Amendment shall become effective on April 21, 2015 (the amendments set forth at Section I hereof is subject to the satisfaction“Fourth Amendment Effective Date”), or waiver, if each of the following conditions shall have been satisfied on or before prior to such date; provided that if the date following conditions are not satisfied by April 21, 2015, this Amendment shall not become effective and shall be of no force or effect with respect to the Credit Agreement:
(i) the Borrower, the Administrative Agent, each Issuing Lender and each other Lender shall have signed a counterpart hereof (whether the "FOURTH AMENDMENT EFFECTIVE DATE"):
(asame or different counterparts) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent delivered (including by way of facsimile, pdf or other electronic transmission) the execution and delivery of the signature pages hereof same to the Administrative Agent.;
(ii) the Administrative Agent shall have received a favorable customary legal opinion of ▇▇▇▇▇ Day, counsel to the Credit Parties, addressed to the Administrative Agent and each of the Lenders party to the Credit Agreement on the Fourth Amendment Effective Date and dated the Fourth Amendment Effective Date covering such matters incidental to this Amendment and the transactions contemplated hereby as the Administrative Agent may reasonably request;
(iii) the Administrative Agent shall have received (A) true and complete copies of resolutions of the board of directors of the Borrower approving and authorizing the execution, delivery and performance of the Credit Agreement and the Credit Documents, in each case as modified by this Amendment, certified as of the Fourth Amendment Effective Date by an Authorized Representative and attested to by another Authorized Representative of the Borrower as being in full force and effect without modification or amendment and (B) good standing certificates for the Borrower from the jurisdiction in which the Borrower is organized;
(iv) all of the representations and warranties made pursuant to Section 3 hereof shall be true and correct in all material respects on the Fourth Amendment Effective Date, both before and after giving effect to this Amendment, with the same effect as though such representations and warranties had been made on and as of the Fourth Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date);
(v) since December 29, 2012, nothing shall have occurred (and neither the Administrative Agent nor the Required Lenders shall have become aware of any facts or conditions not previously known) which the Administrative Agent or the Required Lenders shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vi) no litigation by any entity (private or governmental) shall be pending or threatened in writing with respect to the Credit Agreement, any other Credit Document or any other documentation executed in connection herewith and therewith or the transactions contemplated hereby and thereby, or which the Administrative Agent shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) the Administrative Agent shall have received payment from the Borrower, for the account of each Lender that executes and delivers a counterpart signature page to this Amendment prior to 10:00 A.M., New York City time, on April 21, 2015 (the “Revolver Consent Deadline”), a non-refundable consent fee payable in Dollars in an amount equal to (a) 0.05% of the Commitment of each such existing Lender in effect as of the Fourth Amendment Effective Date (immediately prior to the effectiveness of this Amendment) and (b) Company in the case of any Commitment increase of any existing Lender and any Commitment of any new Lender (in each case, in connection with the effectiveness of the Fourth Amendment), the rate separately agreed with such Lender (provided, that none of the fees described in this clause (vii) are in duplication of the fees set forth in the engagement letter dated as of March 24, 2015);
(viii) the Borrower shall have paid reasonable and documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed pursuant to Section 13.01 of the Credit Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent;
(ix) each Foreign Lender (whether previously a Lender under the Credit Agreement or a new Lender) shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable Borrower, on or prior to the Fourth Amendment Effective Date, includingduly completed 2014 versions of IRS Forms ▇-▇▇▇▇-▇, ▇-▇▇▇▇ or W-8IMY, as applicable (and such additional information and documentation required pursuant to Section 4.04 of the Credit Agreement), evidencing a complete exemption from United States federal income tax withholding, including FATCA withholding, on payments of interest and other withholdable payments under the Loan Documents, and the Borrower shall have confirmed receipt of such forms to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.Administrative Agent; and
(dx) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and documents, information or agreements regarding Credit Parties and the Credit Agreement Borrower as the Agents or Lenders may Administrative Agent shall reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective, and the obligations of the amendments set forth at Section I hereof is subject Lenders to make the satisfaction, or waiver, Advances on the Effective Date hereunder shall become effective on and as of the first date (the “Effective Date”) on which the following conditions on precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since September 30, 2016.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters disclosed in the SEC Reports prior to the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):
“Disclosed Litigation”) or (aii) Companypurports to affect the legality, Holdingsvalidity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by been no change in the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall Disclosed Litigation that would have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof)Material Adverse Effect.
(c) Company All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have paid all fees and other amounts due and payable on or prior been obtained (without the imposition of any conditions that are not acceptable to the Fourth Amendment Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid, or will pay with the Advances on the Effective Date, all accrued fees and expenses of the Agent and the Lenders (including, to the extent invoiced, reimbursement or other payment the reasonable and documented accrued fees and expenses of all out-of-pocket expenses required counsel to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment).
(f) The On the Effective Date, the following statements shall be true and the Agent and Lenders shall have received a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to a Material Adverse Effect shall be correct in all respects) on and as of the Effective Date,
(ii) No Material Adverse Change has occurred since September 30, 2016, and
(iii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) Either (x) a counterpart of this Agreement signed on behalf of the Agent, the Borrower and each Initial Lender or (y) evidence satisfactory to the Agent (which may include an electronic transmission) that such party has signed a counterpart of this Agreement.
(ii) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.17.
(iii) Such documents and certificates as the Agent may reasonably request relating to the organization, existence and good standing of the Company.
(iv) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(v) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(vi) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower, substantially in the form of Exhibit D hereto and as to such other documents and information regarding Credit Parties and matters as any Lender through the Credit Agreement as the Agents or Lenders Agent may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Ugi Utilities Inc)
Conditions Precedent to Effectiveness. The effectiveness of the this Amendment, which such amendments set forth at Section I hereof is subject to the satisfaction, or waiver, of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect effective on and as of March 31, 2019, is subject to the Tranche C Term Loans for all purposes truth and accuracy of the warranties and representations set forth in Sections 4 and 5 below and receipt by the Administrative Agent of each of the following, each of which shall be in form and substance satisfactory to Administrative Agent:
(a) This Amendment, duly executed and delivered by the Borrower, the Guarantors, the Required Lenders and the Administrative Agent;
(b) A certificate of the Borrower dated as of the date hereof signed by a Responsible Officer of the Borrower certifying that, immediately before and after giving effect to this Amendment (i) the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the 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 as of such earlier date; (ii) since December 31, 2018, there has been no event, development or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (iii) no Default exists, or would result after giving effect to the amendments contemplated by this Amendment;
(c) Company shall have paid The payment of all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Dateeffective date of this Amendment, including, to the extent invoiced, including reimbursement or other payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Company Borrower and Holdings hereunder or and under any other Credit Document.that certain Amendment Engagement Letter dated April 26, 2019 among the Borrower, SunTrust Bank and SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.;
(d) Administration At least five (5) days prior to the First Amendment Effective Date, all documentation and other information required by bank regulatory authorities or reasonably requested by the Administrative Agent or any Lender under or in respect of applicable “know your customer” and anti-money laundering Legal Requirements including the Lenders shall have received originally executed copies of Patriot Act and, if Borrower qualifies as a “legal entity customer” under the favorable written opinion of AkinBeneficial Ownership Regulation, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, a Beneficial Ownership Certification in relation to Borrower; and
(e) Such other documents as to such matters as the Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Tutor Perini Corp)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is this Agreement shall be subject to the satisfaction, prior waiver or waiver, receipt by Lender of each of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):
(a) Companyprecedent, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise each in form and substance reasonably satisfactory to Administration AgentLender (the date on which such conditions are satisfied or waived, the “Effective Date”):
a. this Agreement, signed by all Obligors.
(e) Each Credit Party b. No Default or Event of Default shall have obtained occurred and be continuing as of or on the Effective Date.
c. Each of the representations and warranties made by any Obligor in or pursuant to the Loan Documents shall be true and correct in all material consents necessary respects as of the Effective Date (except to the extent such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date), except that any representations and warranties subject to “materiality”, “Material Adverse Effect” or advisable similar materiality qualifiers shall be true and correct in connection with all respects as of the transaction date of such extension of credit (except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct as of such earlier date).
d. Evidence that (i) all Specified Defaults (as defined in those certain Forbearance Agreements dated on or about May 9, 2023 between, among others, DSM and the Obligors, the Lender and the Obligors and ▇▇▇▇▇▇▇ Ventures LLC and the Obligors (together the “Forbearance Agreements”) have been waived, and (ii) all breaches and defaults (however described) under the Forbearance Agreements have been waived.
e. Evidence that DSM has consented to the transactions contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness f. A legal opinion of this Fourth Amendment pursuant ▇▇▇▇▇▇▇ & West LLP, legal advisers to the conditions set forth in this Section IIObligors.
g. A Cashflow Report for the 13 week period from the Closing Date.
h. A certificate of each Obligor, all outstanding amounts under executed by an authorized officer of such Obligor, with appropriate insertions and attachments, including (i) the Tranche A Term Loans constituent documents of such Obligor, (ii) the relevant board resolutions or written consents of such Obligor adopted by such Obligor for the purposes of authorizing such Obligor to enter into and Tranche B Term Loans shall be paid and satisfied in full and if perform the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver Documents to which such Note to the Company for cancellation.Obligor is party,
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the amendments to the Existing Credit Agreement set forth at Section I hereof is herein are subject to the satisfaction, satisfaction (or waiver, ) of each of the following conditions (the date of such satisfaction being the “Fourth Amendment Effective Date” so long as such date occurs on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"prior to December 31, 2024):
(a) Company, Holdings, Requisite Lenders The prior or substantially simultaneous satisfaction of the conditions set forth in Section 3 (as and to the extent provided therein) and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery occurrence of the signature pages hereof to the Administrative Agent.Fourth Amendment Closing Date;
(b) Company The Specified LSP Acquisition shall be consummated substantially concurrently with the effectiveness of this Amendment in accordance with the terms of the Specified LSP Acquisition Agreement (as in effect on the first date of execution thereof), and such Specified LSP Acquisition Agreement shall not have delivered been amended, supplemented or modified in any respect, or any provision or condition therein waived, or any consent granted thereunder (directly or indirectly), by the Borrowing Agent or any of its Subsidiaries, if such amendment, supplementation, modification, waiver or consent would be materially adverse to the interests of the Lenders or the Administrative Agent a fully executed (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and delivered Fourth Amendment Date Certificate agreed that any amendment or modification to the definition of the term “Material Adverse Effect” in the Specified LSP Acquisition Agreement (which shall as in effect on the first date of execution thereof) will be deemed to be a Funding Notice with respect materially adverse to the Tranche C Term Loans for all purposes hereofinterests of the Lenders and the Administrative Agent (in their respective capacities as such).
(c) All Specified LSP Indebtedness shall be funded substantially simultaneously with the consummation of the Specified LSP Acquisition and the effectiveness of this Amendment, subject to the conditions precedent thereto contained in the documentation therefor (which conditions shall be consistent with customary “limited conditionality” provisions and reasonably satisfactory to the Administrative Agent), without any waiver, consent, amendment or other modification that would be materially adverse to the interests of the Lenders or the Administrative Agent (in their respective capacities as such) without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
(d) The Administrative Agent’s receipt of the 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 to the extent that a Loan Party is a party thereto, each dated the effective date of this Amendment and each in form and substance satisfactory to the Administrative Agent and each of the Lenders party to this Amendment:
(i) Notes duly executed by each Borrower (including, if applicable, any New Borrowers (as defined below)) in favor of each Lender requesting Notes;
(ii) a duly executed Guarantor Joinder and joinder agreement by LSP, ACE Aggregates, LLC, a Texas limited liability company, Pelican Asphalt Company LLC, a Texas limited liability company, and Lone Star Materials & Asphalt, LLC a Texas limited liability company (collectively, the “New Loan Parties”) joining LSP as a Borrower (“New Borrower”) and each other New Loan Party as a Guarantor under the Credit Agreement and the other Loan Documents;
(iii) a duly executed Security Agreement Supplement by each New Loan Party and all requirements in connection therewith (including lien searches, any certificated equity and related powers, UCC filings and as applicable, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office and related perfection actions);
(iv) a certificate of each of the Loan Parties signed by a Responsible Officer, dated the Fourth Amendment Effective Date certifying that no Event of Default under Section 10.1(a), (f) or (g) has occurred and is continuing both immediately before and immediately after giving effect to the Specified LSP Acquisition and any Indebtedness incurred in connection therewith;
(v) a certificate dated the Fourth Amendment Effective Date and signed by a Responsible Officer of each New Loan Party, certifying as appropriate as to: (A) all action taken by such Loan Party to validly authorize, duly execute and deliver any Loan Documents executed and delivered in connection herewith and attaching copies of such resolution or other corporate or organizational action; (B) the names, authority and capacity of the Responsible Officers authorized to sign any Loan Documents executed and delivered in connection herewith and their true signatures; and (C) copies of its organizational documents as in effect on the Fourth Amendment Effective Date, to the extent applicable, certified as of a sufficiently recent date prior to the Fourth Amendment Effective Date by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to due organization and the continued valid existence and good standing in the state of its organization;
(vi) written opinion(s) of counsel for the New Loan Parties, dated as of the Fourth Amendment Effective Date, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Administrative Agent;
(vii) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Loan Documents have been taken; provided that to the extent any such actions, recordings or filings is required under the terms of the Specified LSP Indebtedness but is not required by the terms of the Specified LSP Indebtedness to be provided until after the closing thereof, such actions, recordings or filings shall not be a condition to effectiveness hereunder but shall be required to be delivered by the earlier of (x) 90 days (or such later time as the Administrative Agent may agree) after the Fourth Amendment Effective Date (as such date may be extended by the Administrative Agent in its sole discretion) and (y) the date of provision thereof with respect to any Specified LSP Indebtedness; and
(viii) a duly executed Applicable Intercreditor Agreement between the Administrative Agent and Bank of America, N.A., as administrative agent with respect to any Specified LSP Indebtedness (in such capacity, the “Specified LSP Indebtedness Agent”) incurred on or about the Fourth Amendment Effective Date, and acknowledged by the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent and the Specified LSP Indebtedness Agent.
(e) The Administrative Agent shall have paid all fees and other amounts due and payable on or received, at least 3 business days prior to the Fourth Amendment Effective 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, the PATRIOT Act and to the extent invoicedrequired thereby, reimbursement or other payment of all out-of-pocket expenses required the Beneficial Ownership Regulation, that has been reasonably requested in writing by any Lender at least 5 business days prior to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth AmendmentDate.
(f) The Borrowers shall have paid in full all fees payable in connection with this Amendment as of the Fourth Amendment Effective Date.
(g) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date of this Amendment, plus such additional amounts of such fees, charges and Lenders 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 Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.3 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such other documents Lender prior to the proposed Fourth Amendment Effective Date specifying its objection thereto. The parties hereto understand and information regarding agree that the amendments to the Existing Credit Parties Agreement set forth herein (i) shall not become effective until the Fourth Amendment Effective Date, (ii) shall be deemed to become effective on the Fourth Amendment Effective Date immediately prior to the documentation effectuating any Specified LSP Indebtedness and the Credit Agreement as funding thereof, (iii) shall become effective on the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment Effective Date immediately prior to the consummation of the Specified LSP Acquisition pursuant to the conditions set forth Specified LSP Acquisition Agreement and (iv) shall not become effective in this Section IIany event unless the Fourth Amendment Effective Date occurs on or prior to December 31, all outstanding amounts under 2024. The Administrative Agent and the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if Borrowing Agent will notify the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to Lenders of the Company for cancellationoccurrence of the Fourth Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Facility Servicer or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, satisfaction or waiver, waiver of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements, Requisite Lenders instruments, certificates and other documents listed on Schedule II have been duly executed by, the Tranche C Term Loan Lenders shall have indicated their consent by the execution parties hereto and delivery of the signature pages hereof thereto and delivered to the Administrative Agent.;
(bii) Company shall have delivered to Administrative Agent a fully executed all up-front expenses and delivered Fourth Amendment Date Certificate fees (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees including reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses legal fees and any fees required under the Fee Letters) that are required to be reimbursed paid hereunder or paid by the Company hereunder or under any other Credit Document.Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full;
(diii) Administration Agent the Borrower has provided the Facility Servicer and the Lenders Initial Lender with a copy of the RIA Valuation Policy as in effect on the Closing Date;
(iv) the representations contained in Sections 4.01, 4.02 and 4.05 are true and correct in all material respects (except that any representation qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) (as certified by the Borrower);
(v) the Borrower has received all material governmental, shareholder/partner/general partner and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(vi) no action, proceeding or investigation has been instituted or, to the knowledge of a Responsible Officer of the Borrower, after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial ▇▇▇▇▇▇▇’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vii) the Borrower shall have, at its own sole cost and expense, obtained an investment grade Debt Rating, and the Initial Lender shall have a received originally executed copies a copy of any rating letter issued in connection therewith; and
(viii) the Administrative Agent has received all documentation and other information requested by the Administrative Agent acting at the direction of the favorable written opinion of AkinMajority Lenders or required by regulatory authorities with respect to the Borrower and the Facility Servicer under applicable “know your customer” and Anti-Money Laundering Laws, Gumpincluding the USA PATRIOT Act, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise all in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection . For purposes of determining compliance with the transaction contemplated conditions specified in this Section, each Lender that has signed this Agreement and the Administrative Agent 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 this Fourth Amendment.
(f) The or acceptable or satisfactory to a Lender or the Administrative Agent and Lenders unless the Borrower shall have received notice from such other documents and information regarding Credit Parties and Lender or the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant Administrative Agent prior to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Stepstone Private Credit Fund LLC)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective, and the obligations of the amendments set forth at Section I hereof is subject Lenders to make Advances hereunder shall become effective, on and as of the satisfaction, or waiver, of first date (the “Effective Date”) on which the following conditions on precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since September 30, 2012.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters disclosed in the SEC Reports prior to the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):
“Disclosed Litigation”) or (aii) Companypurports to affect the legality, Holdingsvalidity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by been no change in the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall Disclosed Litigation that would have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof)Material Adverse Effect.
(c) Company All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid all accrued fees and other amounts due expenses of the Agent and payable on or prior to the Fourth Amendment Effective Date, Lenders (including, to the extent invoiced, reimbursement or other payment the reasonable and documented accrued fees and expenses of all out-of-pocket expenses required counsel to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment).
(f) The On the Effective Date, the following statements shall be true and the Agent and Lenders shall have received a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to a Material Adverse Effect shall be correct in all respects) on and as of the Effective Date,
(ii) No Material Adverse Change has occurred since September 30, 2012, and
(iii) No event has occurred and is continuing, or would result from such Advance, that constitutes a Default.
(g) The Agent shall have received the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) Either (x) a counterpart of this Agreement signed on behalf of the Agent, the Borrower and each Initial Lender or (y) evidence satisfactory to the Agent (which may include an electronic transmission) that such party has signed a counterpart of this Agreement.
(ii) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.13.
(iii) Such documents and certificates as the Agent may reasonably request relating to the organization, existence and good standing of the Company.
(iv) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(v) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(vi) A favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower, substantially in the form of Exhibit D hereto and as to such other documents and information regarding Credit Parties and matters as any Lender through the Credit Agreement as the Agents or Lenders Agent may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Conditions Precedent to Effectiveness. 4.1 The effectiveness of the amendments set forth at Section I 1 hereof is subject to the satisfaction, or waiver, of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):hereof:
(a) The Company, Holdingsthe Guarantors, the Requisite Lenders Lenders, the Administrative Agent and the Tranche C Term Loan Lenders Collateral Monitoring Agent shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company As of the Second Amendment Effective Date (and after giving effect to this Second Amendment), the representations and warranties contained herein and in the other Credit Documents shall be true, correct and complete in all material respects on and as of the Second Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have delivered to Administrative Agent a fully executed been true, correct and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for complete in all purposes hereof)material respects on and as of such earlier date.
(c) Company shall have paid all fees and other amounts due and payable on or prior to As of the Fourth Second Amendment Effective Date, includingafter giving effect to this Second Amendment, to the extent invoiced, reimbursement no event shall have occurred and be continuing that would constitute an Event of Default or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenta Default.
(d) Administration Administrative Agent and the Lenders shall have received originally executed copies of received, for distribution to all Lenders executing this Amendment on or prior to 5:00 p.m. Eastern time on April 14, 2003, whether or not the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Second Amendment Effective Date and otherwise in form and substance reasonably satisfactory shall have occurred prior to Administration Agentsuch date, an amendment fee equal to 0.50% of such Lenders' outstanding Commitments immediately prior to the Second Amendment Effective Date.
(e) Each Credit Party The Company shall have obtained reimbursed or paid to the Collateral Monitoring Agent and its outside counsel, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, all material consents necessary or advisable reasonable and documented costs, fees, and expenses (including, without limitation, legal fees and expenses) incurred by the Collateral Monitoring Agent and its outside counsel in connection with the transaction contemplated by preparation, review and negotiation of this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties Second Amendment and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant transactions contemplated hereby, and invoiced to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationCompany.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Mariner Health Care Inc)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, This Amendment shall not be effective until each of the following conditions on or before precedent have been fulfilled to the date hereof (satisfaction of the "FOURTH AMENDMENT EFFECTIVE DATE"):Administrative Agent:
(a) CompanyThis Amendment shall have been duly executed and delivered by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof.
(b) All necessary consents and approvals to this Amendment shall have been obtained by the Loan Parties.
(c) After giving effect to this Amendment, Holdingsno Default or Event of Default shall have occurred and be continuing.
(d) After giving effect to this Amendment, Requisite Lenders the representations and warranties herein and in the Credit Agreement and the Tranche C Term other Loan Lenders Documents shall be (i) to the extent qualified by materiality, true and correct in all respects, and (ii) to the extent not qualified by materiality, true and correct in all material respects, in each case on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall have indicated their consent by been true and correct in all material respects as of such earlier date).
(e) The Administrative Agent shall have received, for the pro rata account of each Lender party to the Credit Agreement on the date hereof, a non-refundable amendment fee in an amount equal to $115,000 payable in immediately available funds, which amendment fee shall be fully earned when paid. The foregoing amendment fee shall be credited against the amendment fee payable to such Lenders in connection with the execution and delivery of the signature pages hereof proposed amendment to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which Credit Agreement to, among other things, increase the Commitments; provided that nothing contained herein shall be deemed a commitment of any Lender to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to enter into such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendmentamendment.
(f) The Administrative Agent and Lenders shall have received such other documents the fees costs and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness expenses required to be paid pursuant to Section 10 of this Fourth Amendment pursuant (including the reasonable and documented fees and disbursements of legal counsel required to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationthereunder).
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, This Amendment shall not be effective until each of the following conditions on or before precedent have been fulfilled to the date hereof (satisfaction of the "FOURTH AMENDMENT EFFECTIVE DATE"):Administrative Agent:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders This Amendment shall have indicated their consent been duly executed and delivered by the execution and delivery of the signature pages hereof to the respective parties hereto. The Administrative AgentAgent shall have received a fully executed copy hereof.
(b) Company All necessary consents and approvals to this Amendment shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof)been obtained.
(c) Company Immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing. NY-2410437
(d) Immediately after giving effect to this Amendment, the representations and warranties set forth in this Amendment, the Credit Agreement, as amended by this Amendment, and after giving effect hereto, and the other Loan Documents to which it is a party (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of such date as if made on and as of such date, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects (or all respects, as applicable) as of such earlier date.
(e) The Borrower shall have paid all fees to the Administrative Agent in immediately available funds for the account of each Lender that executes and other amounts due and payable becomes party to this Amendment on or prior to the Fourth First Amendment Effective Date, including, an amendment fee equal to the extent invoiced, reimbursement or other payment 0.075% of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ such ▇▇r t▇▇ ▇redit Parties▇▇’s Revolving Commitment on the First Amendment Effective Date. Such fee will not be subject to any set-off or adjustment, as to such matters as Administrative Agent may reasonably request, dated and shall be fully earned on the Fourth First Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendmentnonrefundable once paid.
(f) The Lenders and the Administrative Agent and Lenders shall have received such other documents all expenses for which invoices have been presented (including the reasonable fees and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness expenses of this Fourth Amendment pursuant legal counsel required to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if hereunder or under any other Loan Document), on or before the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationFirst Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Stitch Fix, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at in Section I hereof is subject to the satisfaction, or waiver, shall be effective on and as of the following conditions on or before the date hereof (the "FOURTH FIRST AMENDMENT EFFECTIVE DATE"):) upon the satisfaction or waiver by the Requisite Lenders, on or after the date hereof, of the following conditions:
(ai) The Administrative Agent shall have received, for distribution to all Lenders executing this Amendment by no later than January 10, 2005, an amendment fee equal to 0.05% of such Lenders' outstanding Loans and Commitments on the First Amendment Effective Date.
(ii) The Company, Holdingsthe Borrowers, Requisite Lenders the other Credit Parties and the Tranche C Term Loan Requisite Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(biii) Company The Administrative Agent shall have delivered received a certificate from the Company, certifying that as of the First Amendment Effective Date, the representations and warranties contained in Section III herein and in the other Credit Documents are true and correct in all material respects on and as of the First Amendment Effective Date to the same extent as though made on and as of the First Amendment Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects on and as of such earlier date.
(iv) The Administrative Agent shall have received a fully executed Counterpart Agreement from Holdings indicating that Holdings has become a Guarantor and delivered Fourth Amendment Date Certificate (which shall be deemed to be Credit Party under the Credit Agreement and a Funding Notice with respect to Grantor under the Tranche C Term Loans for all purposes hereof)Pledge and Security Agreement.
(cv) Company The Administrative Agent shall have paid received (x) pledged stock in AR Holdings and (y) UCC-1 financing statements filed against Holdings.
(vi) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Fourth First Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company Borrower hereunder or under any other Credit Document.
(dvii) Administration The Administrative Agent and the Lenders shall have received originally executed copies a certificate from the Company, certifying that as of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth First Amendment Effective Date (after giving effect to the amendments contained herein), no event shall have occurred and otherwise in form and substance reasonably satisfactory to Administration Agentbe continuing that would constitute an Event of Default or a Default.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(fviii) The Administrative Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents Administrative Agent or Lenders may have reasonably request. Upon the effectiveness of this Fourth Amendment pursuant requested prior to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationdate hereof.
Appears in 1 contract
Sources: Second Lien Credit and Guaranty Agreement (American Reprographics CO)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is this Agreement shall be subject to the satisfaction, prior waiver or waiver, receipt by Lender of each of the following conditions on or before precedent, each in form and substance satisfactory to Lender (the date hereof (on which such conditions are satisfied or waived, the "FOURTH AMENDMENT EFFECTIVE DATE"“Effective Date”):
(a) Companythis Agreement, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent signed by the execution and delivery of the signature pages hereof to the Administrative Agentall Obligors.
(b) Company No Default or Event of Default shall have delivered to Administrative Agent a fully executed occurred and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to continuing as of or on the Tranche C Term Loans for all purposes hereof)Effective Date.
(c) Company Each of the representations and warranties made by any Obligor in or pursuant to the Loan Documents shall be true and correct in all material respects as of the Effective Date (except to the extent such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date), except that any representations and warranties subject to “materiality”, “Material Adverse Effect” or similar materiality qualifiers shall be true and correct in all respects as of the date of such extension of credit (except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct as of such earlier date).
(d) Evidence that (i) all Specified Defaults (as defined in those certain Forbearance Agreements dated on or about May 9, 2023 between, among others, DSM and the Obligors, the Lender and the Obligors and ▇▇▇▇▇▇▇ Ventures LLC and the Obligors (together the “Forbearance Agreements”) have been waived, and (ii) all breaches and defaults (however described) under the Forbearance Agreements have been waived.
(e) Evidence that DSM has consented to the transactions contemplated by this Amendment.
(f) A legal opinion of ▇▇▇▇▇▇▇ & West LLP, legal advisers to the Obligors.
(g) A Cashflow Report for the 13 week period from the Closing Date.
(h) A certificate of each Obligor, executed by an authorized officer of such Obligor, with appropriate insertions and attachments, including (i) the constituent documents of such Obligor, (ii) the relevant board resolutions or written consents of such Obligor adopted by such Obligor for the purposes of authorizing such Obligor to enter into and perform the Loan Documents to which such Obligor is party, (iii) the names, titles, incumbency and signature specimens of those representatives of such Obligor who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Obligor, and (iv) a good standing certificate) for each Obligor certified as of a recent date by the appropriate Governmental Authority of its respective jurisdiction of organization.
(i) The Obligors shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment Lender all amounts in respect of all reasonable and documented out-of-pocket expenses required in accordance with Section 6 hereof to be reimbursed the extent invoiced on or paid by prior to the Company hereunder or under any other Credit Documentdate hereof.
(dj) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant An amendment agreement to the conditions set forth in this Section IIDSM Loan Agreement, signed by all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note parties to the Company for cancellationit.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyExcept as disclosed in filings made by the Company with the Securities and Exchange Commission, Holdingspress releases and other public disclosures prior to the date hereof, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2013.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Company shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued and invoiced fees and other amounts due and payable on or prior to expenses of the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies (including the accrued and invoiced fees and expenses of counsel to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment).
(f) The On the Effective Date, the following statements shall be true and the Agent and Lenders shall have received such for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Corporate Secretary and information regarding Credit Parties and Securities Counsel of the Credit Agreement as Company, substantially in the Agents or Lenders may reasonably request. Upon the effectiveness form of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationExhibit E hereto.
Appears in 1 contract
Sources: Credit Agreement (Corning Inc /Ny)
Conditions Precedent to Effectiveness. The effectiveness of This Agreement shall become effective on the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, Effective Date so long as each of the following conditions precedent has been satisfied:
(i) no material adverse change shall have occurred in the assets, business or prospects of Loan Parties and their Subsidiaries determined on or before a consolidated basis since the date hereof of Agent's latest field examination (not including for this purpose the "FOURTH AMENDMENT EFFECTIVE DATE"):
field review referred to in clause (ab) Company, Holdings, Requisite Lenders below) and the Tranche C Term Loan Lenders (ii) no change or event shall have indicated occurred which would impair the ability of Loan Parties and their consent by the execution and delivery Subsidiaries to perform their obligations hereunder or under any of the signature pages hereof other Financing Agreements or Foreign Financing Agreements to which they are parties or of any Agent Party to enforce the Administrative Agent.Obligations or Foreign Obligations, as applicable, or realize upon the Collateral or any Foreign Collateral, in each case taken as a whole;
(b) Company shall have the Excess Availability as determined by Agent (based on the Borrowing Base reflected in the most recent Borrowing Base Certificate delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which in accordance with Section 7.1(a)(i) herein), as of the Effective Date, shall be deemed not less than $75,000,000 after giving effect to (i) all Loans made or to be a Funding Notice made and the Letter of Credit Accommodations issued or to be issued prior to or in connection with respect the closing of the transactions hereunder, (ii) the Foreign Advances made or to be made in connection with the Tranche C Term Loans for transactions contemplated under the Foreign Financing Agreements and (iii) payment of all purposes hereof).fees and expenses in connection with the transactions under this Agreement, the other Financing Agreements and the Foreign Financing Agreements;
(c) Company Agent shall have paid received evidence, in form and substance satisfactory to Agent, that each Collateral Agent has a valid perfected first priority security interest in all fees of the Collateral and Foreign Collateral, as applicable, subject to the senior liens and other amounts due encumbrances permitted hereunder and payable on or prior to under the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.Foreign Financing Agreements;
(d) Administration Agent shall be satisfied that no investigation, litigation or other proceedings shall be pending or threatened against any Loan Party or any Subsidiary of any Loan Party which could have a Material Adverse Effect in the reasonable determination of Agent; and
(e) the Financing Agreements, the Foreign Financing Agreements and the Lenders all other instruments, documents, certificates, opinions, agreements, information and records listed on Schedule 4.1 shall have received originally been duly executed copies of the favorable written opinion of Akinand/or delivered to Agent, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Loan and Security Agreement (Delco Remy International Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 28, 2024 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2016 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by An executed copy of this Fourth AmendmentAgreement from each party hereto.
(fg) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of This Agreement shall become effective upon the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery The Administrative Agent’s receipt of the signature pages hereof following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement; delivery of an executed counterpart of this Agreement (or any other Loan Document) by facsimile shall be effective as delivery of a manually executed counterpart;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a secretary or assistant secretary of the Borrower 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;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized and in good standing in Oklahoma, and that the Borrower is in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and
(iv) such other assurances, certificates, or documents as the Administrative Agent or the Required Lenders reasonably may require.
(b) Company There shall not have delivered occurred any event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to Administrative Agent have, either individually or in the aggregate, (i) a fully executed material adverse change in, or a material adverse effect upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower and delivered Fourth Amendment Date Certificate its Subsidiaries taken as a whole; (ii) a material impairment of the ability of the Borrower to perform its obligations under any Loan Document to which shall be deemed it is a party; or (iii) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to be which it is a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof)party.
(c) Company All representations and warranties of the Borrower set forth in Article V shall be true and correct as of the Effective Date.
(d) No Default or Event of Default shall have paid occurred and be continuing as of the Effective Date.
(e) The Administrative Agent shall have received a closing certificate dated the Effective Date and executed by a Responsible Officer of the Borrower with respect to the matters set forth in Section 4.01(b), (c), and (d).
(f) The Administrative Agent’s shall have received (i) a favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E; and (ii) a favorable opinion of ▇▇▇▇▇ Liddell & ▇▇▇▇ LLP, special New York counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F.
(g) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses (including, without limitation, Attorney Costs) required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to Agreement, and such notice shall be conclusive and binding. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions set forth specified in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests4.01, each Lender who that has previously 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 a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver notice from such Note Lender prior to the Company for cancellationproposed Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Oneok Inc /New/)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, This Amendment shall not be effective until each of the following conditions on or before precedent have been fulfilled to the date hereof satisfaction of (and in form and substance satisfactory to, as applicable) the "FOURTH AMENDMENT EFFECTIVE DATE"Administrative Agent (such date, the “Fifth Amendment Effective Date”):
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders 3.1 This Amendment shall have indicated their consent been duly executed and delivered by the execution and delivery of the signature pages hereof to the respective parties hereto. The Administrative Agent.
(b) Company Agent shall have delivered to Administrative Agent received a fully executed copy hereof.
3.2 All necessary consents and delivered Fourth approvals to this Amendment shall have been obtained by the Loan Parties.
3.3 After giving effect to this Amendment, each of the representations and warranties herein and in the Credit Agreement and the other Loan Documents (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of the Fifth Amendment Effective Date Certificate (as if made on and as of such date, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date. For purposes of determining compliance with the conditions specified in this Section 4, each Lender that has executed this Amendment shall be deemed to have consented to, approved or accepted or to be a Funding Notice with respect satisfied with, each document or other matter either sent (or made available) by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender, unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Tranche C Term Loans for all purposes hereof).
(c) Company Fifth Amendment Effective Date specifying such Lender’s objection thereto and such objection shall not have paid all fees and other amounts due and payable been withdrawn by notice to the Administrative Agent to that effect on or prior to the Fourth Fifth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Amendment and the obligations of the amendments set forth at Section I hereof Additional Refinancing Lender to provide the Amendment No. 7 Refinancing Term Loan Commitments is subject to the satisfaction, satisfaction or waiver, waiver in accordance with Section 12.12 of the Credit Agreement of the following conditions on precedent (upon satisfaction or before waiver of such conditions, such date being referred to herein as the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"“Seventh Amendment Effective Date”):
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders 4.1 The Seventh Amendment Arrangers shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid received all fees and other amounts previously agreed in writing by the Seventh Amendment Arrangers (or any of its affiliates) and the Borrower to be due and payable on or prior to the Fourth Seventh Amendment Effective DateDate in the amounts and at the times so specified, including, to the extent invoiced, including reimbursement or other payment of all reasonable and documented or invoiced out-of-pocket expenses (which, in the case of legal fees, shall be limited to the reasonable and documented or invoiced fees, disbursements and other charges of one primary outside counsel and of any relevant local counsel to the Seventh Amendment Arrangers, taken as a whole) required to be reimbursed or paid by the Company hereunder or any Loan Party under any other Credit Documentletter agreement previously entered into among the Seventh Amendment Arrangers and the Borrower, in each case, for which reasonably detailed invoices have been presented to Borrower at least two (2) Business Days prior to the Seventh Amendment Effective Date.
(d) Administration 4.2 The representations and warranties set forth in Section 5 of this Amendment and Article V of the Credit Agreement shall be true and correct in all material respects on and as of the Seventh Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date, and except that such materiality qualifier shall not be applicable to any representation and warranty that is already qualified by materiality.
4.3 The Administrative Agent and the Lenders Additional Refinancing Lender shall have received originally executed copies received, at least three Business Days (or such shorter period as otherwise agreed) prior to the Seventh Amendment Effective Date, all documentation and other information about the Borrower and the Subsidiary Guarantors as has been reasonably requested in writing at least ten (10) days prior to the Seventh Amendment Effective Date by the Administrative Agent and the Additional Refinancing Lender that they reasonably determine is required by Governmental Authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, a beneficial ownership certification in relation to the Borrower.
4.4 The Administrative Agent shall have received, a legal opinion of (x) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special Georgia counsel to the Loan Parties, each of which opinions shall be addressed to the Administrative Agent and the Lenders, dated as of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Seventh Amendment Effective Date and otherwise shall be in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) 4.5 The Administrative Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness a counterpart signature page of this Fourth Amendment, executed and delivered by (i) the Borrower, Holdings, each Subsidiary Guarantor, (ii) the Administrative Agent and (iii) the Additional Refinancing Lender and Consenting Term Loan Lenders (which collectively such Lenders shall constitute 100% of all Lenders outstanding prior to this Amendment).
4.6 The Administrative Agent shall have received a certificate of each Loan Party, dated the Seventh Amendment pursuant Effective Date signed by the secretary or any assistant secretary of such Loan Party and attested to by an Authorized Officer of such Loan Party, with the following insertions and attachments: (i) certified organizational authorizations, incumbency certifications, the certificate of incorporation or other similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified as being in full force and effect on the Seventh Amendment Effective Date and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization as of a recent date.
4.7 At the time of, and immediately after giving effect to, this Amendment, no Default or Event of Default shall have occurred and be continuing or resulted therefrom.
4.8 The Administrative Agent shall have received a certificate, dated the Seventh Amendment Effective Date and signed on behalf of each of Borrower and Holdings, as applicable, certifying on behalf of the Borrower and Holdings that the conditions precedent set forth in this Section IISections 4.2 and 4.7 have been satisfied or waived on such date.
4.9 The Administrative Agent shall have received a Notice of Borrowing with respect to the Amendment No. 7 Refinancing Term Loans in the form of Exhibit F to the Credit Agreement.
4.10 The Borrower shall have paid to the Administrative Agent, for the ratable account of the Lenders holding Term Loans outstanding prior to the Seventh Amendment Effective Date, all outstanding amounts under the Tranche A accrued and unpaid interest on such Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if to, but not including, the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationSeventh Amendment Effective Date.
Appears in 1 contract
Sources: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, This Joinder shall not be effective until each of the following conditions on or before precedent has been fulfilled to the date hereof (reasonable satisfaction of the "FOURTH AMENDMENT EFFECTIVE DATE"):Issuing Bank:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders a. This Joinder shall have indicated their consent been duly executed and delivered by the execution respective parties hereto, and delivery shall be in full force and effect.
b. All action on the part of the signature pages hereof New Subsidiary Credit Party necessary for the valid execution, delivery and performance by it of this Joinder and any other documentation, instruments, and agreements executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Administrative AgentIssuing Bank shall have been provided to the Issuing Bank.
(b) Company c. The New Subsidiary Credit Party shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect the following to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective DateIssuing Bank, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Issuing Bank:
(i) Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its incorporation or organization.
(eii) Each A certificate of an authorized officer of the New Subsidiary Credit Party, certifying as to the due adoption and continued effectiveness, and setting forth the text, of each resolution adopted in connection with this Joinder, and attesting to the true signatures of each Person authorized as a signatory to this Joinder or any of the other Credit Documents.
(iii) [Execution and delivery by the New Subsidiary Credit Party of a Joinder to the Security Documents and such other documents, agreements and certificates as the Issuing Bank may reasonably require.]
d. If requested by the Issuing Bank, the Issuing Bank shall have obtained received a favorable written legal opinion of the New Subsidiary Credit Party's counsel addressed to the Issuing Bank, covering such matters relating to the New Subsidiary Credit Party, the Credit Documents and/or the transactions contemplated thereby as the Issuing Bank shall reasonably request.
e. [The Issuing Bank shall have received all material consents necessary documents and instruments, required by law or advisable reasonably requested by the Issuing Bank to create or perfect the first priority Lien intended to be created under the Credit Documents and all action required for perfection shall have been taken to the reasonable satisfaction of the Issuing Bank.]
f. All reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the transaction contemplated preparation and negotiation of this Joinder and related documents, if any, shall have been paid in full by this Fourth Amendmentthe New Subsidiary Credit Party.
(f) The Agent and Lenders g. No Default or Event of Default shall have received such other documents occurred and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationcontinuing.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 30, 2023 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, This Amendment shall not be effective until each of the following conditions on or before precedent have been fulfilled to the date hereof (satisfaction of the "FOURTH AMENDMENT EFFECTIVE DATE"):Required Lenders:
(a) Company, Holdings, Requisite Lenders This Amendment shall have been duly executed and delivered by the Borrower and the Tranche C Term Loan Lenders Required Lenders, and acknowledged by each Guarantor. The Administrative Agent shall have indicated their consent by the execution and delivery received a fully executed copy of the signature pages hereof to the Administrative Agentthis Amendment.
(b) Company The fee letter agreement, dated as of October 31, 2025 (the “Fifth Amendment Fee Letter”) shall have delivered to Administrative Agent a fully been duly executed and delivered Fourth Amendment Date Certificate (which by the Borrower and the Administrative Agent, and the Borrower shall be deemed have paid to the Administrative Agent all fees required to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof)paid thereunder.
(c) Company Immediately after giving effect to this Amendment, no Default or Event of Default shall have paid occurred and be continuing.
(d) Immediately after giving effect to this Amendment, the representations and warranties made by each Loan Party in this Amendment, the Credit Agreement, as amended by this Amendment, and the other Loan Documents to which it is a party (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all fees material respects, in each case, on and other amounts due as of such date as if made on and payable on or prior to the Fourth Amendment Effective Dateas of such date, including, except to the extent invoicedany such representation and warranty expressly relates to an earlier date, reimbursement in which case such representation and warranty shall have been true and correct in all material respects (or other payment all respects, as applicable) as of such earlier date.
(e) The Lenders and the Administrative Agent shall have received all out-of-pocket expenses fees required to be reimbursed or paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel required to be paid by the Company hereunder or under any other Credit Loan Document.
(d) Administration Agent and ), to the Lenders shall have received originally executed copies extent provided in Section 10.5 of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as on or before the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Fifth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationEffective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, This Amendment shall not be effective until each of the following conditions on or before precedent have been fulfilled to the date hereof (satisfaction of the "FOURTH AMENDMENT EFFECTIVE DATE"):Administrative Agent:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders This Amendment shall have indicated their consent been duly executed and delivered by the execution and delivery respective parties hereto. The Administrative Agent shall have received a fully executed copy of the signature pages hereof to the Administrative Agentthis Amendment.
(b) Company The Administrative Agent shall have delivered to Administrative Agent received a fully duly executed and delivered Fourth copy of the Third Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to Fee Letter dated as of the Tranche C Term Loans for all purposes date hereof).
(c) Company The Administrative Agent shall have paid all fees received (i) a certificate of each Loan Party, dated the Third Amendment Effective Date and other amounts due and payable on executed by the Secretary, Managing Member or prior equivalent officer of such Loan Party, substantially in the form of Exhibit C to the Fourth Credit Agreement, with appropriate insertions and attachments, including (A) the Operating Documents of such Loan Party (or a
(d) The Administrative Agent shall have received the results of recent lien, judgment and litigation searches in each of the jurisdictions reasonably required by the Administrative Agent, and such searches shall reveal no liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3 of the Credit Agreement.
(e) There shall not have occurred since January 31, 2023, any event or condition that has had or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(f) All necessary consents and approvals to this Amendment Effective Dateshall have been obtained.
(g) Immediately, includingafter giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
(h) Immediately after giving effect to this Amendment, the representations and warranties set forth in this Amendment, the Credit Agreement and the other Loan Documents, as amended by this Amendment, to which it is a party (i) that is qualified by materiality shall be true and correct, and (ii) that is not qualified by materiality, shall be true and correct in all material respects, in each case, on and as of such date as if made on and as of such date, except to the extent invoicedany such representation and warranty expressly relates to an earlier date, reimbursement in which case such representation and warranty shall have been true and correct in all material respects (or other payment all respects, as applicable) as of such earlier date.
(i) The Lenders and the Administrative Agent shall have received all out-of-pocket expenses fees required to be reimbursed or paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel required to be paid by the Company hereunder or under any other Credit Loan Document.
(d) Administration Agent and under the Lenders shall have received originally executed copies of Third Amendment Fee Letter, on or before the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Third Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration AgentDate.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Yext, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on precedent have been satisfied or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):waived:
(a) CompanyExcept as disclosed in filings made by the Company with the SEC, Holdingspress releases and other public disclosures prior to the date hereof, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2017.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) All material governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained.
(d) The Company shall have paid all accrued and invoiced fees and other amounts due and payable on or prior to expenses of the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders (including the accrued and invoiced fees and expenses of counsel to the Agent) to the extent invoiced prior to the Effective Date.
(e) On the Effective Date, the following statements shall be true and the Agent shall have received originally executed copies for the account of each Lender a certificate signed by a duly authorized officer of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably requestCompany, dated the Fourth Amendment Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date and otherwise the following, each dated the Effective Date, in form and substance reasonably satisfactory to Administration the Agent:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Effective Date.
(eii) Each Credit Party shall have obtained Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all material consents documents evidencing other necessary or advisable in connection corporate action with respect to this Agreement and the transaction contemplated by this Fourth AmendmentNotes.
(fiii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A customary opinion of counsel of the Company (which may be in-house counsel) .
(g) The Agent and Lenders Company shall have received such other documents terminated the commitments, and information regarding Credit Parties paid in full all accrued and unpaid amounts, under the Company’s Amended and Restated Credit Agreement dated as of September 30, 2014 (the Agents or “Existing Credit Agreement”). Each of the Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant that is a party to the conditions set forth in this Section II, all outstanding amounts Existing Credit Agreement hereby waives the requirement of prior notice of termination of the commitments under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationExisting Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Corning Inc /Ny)
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Collateral Custodian, the Facility Servicer or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements, Requisite Lenders instruments, certificates and other documents listed on Schedule IV have been duly executed by, and delivered to, the parties hereto and thereto;
(ii) the Collection Account has been established pursuant to the Account Control Agreement;
(iii) the Borrower shall have obtained an equivalent rating of BBB-, BBB(low) or Baa3 or higher on the credit facility evidenced by this Agreement from a NRSRO, and the Tranche C Term Loan Lenders Initial Lender shall have indicated their consent a received a copy of any rating letter issued in connection therewith;
(iv) all up-front expenses and fees (including reasonable legal fees and expenses and any fees and expenses required under the Fee Letters and pursuant to Schedule VII) that are required to be paid hereunder or by the execution Fee Letters or Schedule VII have been paid in full;
(v) the Borrower has provided the Facility Servicer and delivery the Initial Lender with a copy of the signature pages hereof Valuation Policy as in effect on the Restatement Date;
(vi) the representations contained in Sections 4.01 and 4.02 are true and correct;
(vii) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Lenders) in connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which in the reasonable judgment of the Lenders could reasonably be expected to have such effect;
(viii) no action, proceeding or investigation has been instituted, threatened in writing or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lender’s sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(ix) the Administrative Agent.
(b) Company shall have delivered to Agent has received all documentation and other information requested by the Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice acting at the direction of the Majority Lenders or required by regulatory authorities with respect to any Loan Party under applicable “know your customer” and AML Laws, including the Tranche C Term Loans for USA PATRIOT Act, all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.the Administrative Agent and the Majority Lenders; and
(ex) Each Credit Party shall have obtained the Facility Servicer has received all material consents necessary or advisable in connection documentation and other information requested by the Facility Servicer required by regulatory authorities with respect to Borrower, the transaction contemplated by this Fourth Amendment.
(f) The Administrative Agent and the Lenders shall have received such other documents under applicable “know your customer” and information regarding Credit Parties Anti-Money Laundering Laws, including the USA PatriotPATRIOT Act, all in form and the Credit Agreement as the Agents or Lenders may substance reasonably request. Upon the effectiveness of this Fourth Amendment pursuant satisfactory to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationFacility Servicer.
Appears in 1 contract
Sources: Loan and Servicing Agreement (FS Credit Real Estate Income Trust, Inc.)
Conditions Precedent to Effectiveness. 2.1 The effectiveness of the amendments set forth at Section I 1 hereof is are subject to the satisfaction, or waiver, of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):hereof:
(a) Company, Holdings, Requisite Lenders A. The Company and the Tranche C Term Loan Requisite Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof to the Agent.
B. The Company shall have paid at least $14,140,000 to the Administrative Agent for distribution to the Term Loan Lenders which consists of (i) a voluntary prepayment of Term Loans equal to $14,000,000, plus (ii) the prepayment premium of 1.0% pursuant to Section 2.13(d) of the Credit Agreement.
C. Administrative Agent shall have received, for distribution to all Term Loan Lenders executing this Amendment on or prior to 5:00 p.m. (New York City time) on February 28, 2003, an amendment fee equal to 0.125% of such Lenders' outstanding Term Loans immediately prior to the First Amendment Effective Date and after taking into effect the principal payment contemplated by Section 2.1B above.
D. The Administrative Agent shall have received a favorable written opinion of Fried ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Credit Parties, in form and substance satisfactory to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) E. Company shall have paid all fees and other amounts due and payable on or prior to the Fourth First Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies F. As of the favorable written opinion First Amendment Effective Date, after giving effect to this Amendment, the representations and warranties contained herein and in the other Credit Documents shall be true, correct and complete in all material respects on and as of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth First Amendment Effective Date to the same extent as though made on and otherwise as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in form which case such representations and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party warranties shall have obtained been true, correct and complete in all material consents necessary or advisable in connection with respects on and as of such earlier date. FIRST AMENDMENT TO CREDIT AND GUARANTY AGREEMENT 10
G. As of the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders First Amendment Effective Date, no event shall have received such other documents occurred and information regarding Credit Parties and the Credit Agreement as the Agents be continuing that would constitute an Event of Default or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationDefault.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Ipc Acquisition Corp)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof this Agreement is subject to the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof precedent (the "FOURTH AMENDMENT EFFECTIVE DATE"first date of satisfaction of all such conditions herein, the “Effective Date”):
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders The Administrative Agent shall have indicated their consent by received duly executed counterparts of this Agreement from the execution and delivery of Borrowers, the signature pages hereof to Guarantors, the Administrative Agent, and the Required Lenders.
(b) Company Each of the Borrowers and the Guarantors shall have delivered confirmed and acknowledged to the Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect the Lenders, that by its execution and delivery of this Agreement that they do hereby confirm and acknowledge to the Tranche C Term Loans for Administrative Agent and the Lenders, that (i) the execution, delivery and performance of this Agreement has been duly authorized by all purposes requisite corporate action on its part; (ii) the Credit Agreement and each other Loan Document to which it is a party constitute valid and legally binding agreements enforceable against it, in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws relating to or affecting the enforcement of creditors’ rights generally and by general principles of equity; (iii) after giving effect to this Agreement, the representations and warranties by the Borrowers or the Guarantors as applicable, contained in the Credit Agreement, Amendment No. 4 and in the other Loan Documents, to which it is a party, are true and correct on and as of the date hereof in all material respects as though made as of the date hereof); (v) all of its obligations under Section 5 of Amendment No. 4 are hereby ratified and confirmed by such Borrower or Guarantor; and (vi) no Default or Event of Default (other than the Subject Defaults) exists under the Credit Agreement or any of the other Loan Documents after giving effect to this Agreement.
(c) Company The Borrowers shall have paid (i) all reasonable and documented fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid incurred by the Company hereunder or under any other Credit Document.
Administrative Agent (dii) Administration Agent all reasonable and the Lenders shall have received originally executed copies documented fees, and out-of-pocket charges and disbursements of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇▇▇▇ ▇▇r t▇▇▇ ▇redit PartiesLLP, as US counsel to the Administrative Agent (directly to such matters as counsel if requested by the Administrative Agent), (iii) all reasonable and documented fees, and out-of-pocket charges and disbursements of ▇▇▇▇▇’▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel to the Administrative Agent may reasonably request, dated (directly to such counsel if requested by the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable incurred in connection with the transaction contemplated this Agreement, and (iv) all reasonable and documented fees, out-of-pocket charges and disbursements incurred by PA Consulting Group, Inc., in connection with this Fourth AmendmentAgreement.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, This Amendment shall not be effective unless and until each of the following conditions on or before precedent has been fulfilled to the satisfaction of the Agent (the date hereof (of such fulfillment, the "FOURTH AMENDMENT EFFECTIVE DATE"“First Amendment Effective Date”):
(a) CompanyThis Amendment shall have been duly executed and delivered to the Agent by the Loan Parties, Holdingsthe Agent, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.Required Lenders;
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company The Loan Parties shall have paid all reasonable and documented costs, fees and other amounts due expenses of the Agent and payable on or prior to the Fourth Amendment Effective DateLenders, including, to without limitation, the extent invoiced, reimbursement or other payment of all reasonable and documented fees and reasonable and documented out-of-pocket expenses required of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and DLA Piper Australia, as outside counsel to Agent and the Lenders, incurred through the First Amendment Effective Date;
(c) [*], the representations and warranties in Section 6 of this Amendment, Section 5 of the Loan Agreement and elsewhere in the Loan Documents shall be reimbursed true, correct and complete in all material respects (unless such representations are already qualified by reference to materiality, Material Adverse Effect or paid by similar language, in which case such representations and warranties shall be true and correct in all respects) on and as of the Company hereunder or under any other Credit Document.date hereof with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date; and
(d) Administration Agent At the time of and after giving effect to this Amendment, (i) no fact or condition exists that could (or could, with the Lenders shall passage of time, the giving of notice, or both) constitute an Event of Default and (ii) no event that has had or could reasonably be expected to have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date a Material Adverse Effect has occurred and otherwise in form and substance reasonably satisfactory to Administration Agentis continuing.
(e) Each Credit Party The Agent shall have obtained received, in form and substance satisfactory to the Agent:
(i) certified copies of the constitutional documents and the bylaws, as amended through the First Amendment Effective Date, of each Loan Party;
(ii) a certificate of good standing (or foreign equivalent or insolvency search, as applicable) for each Loan Party from its jurisdiction of organization and similar certificates from all material consents necessary or advisable other jurisdictions in connection which it does business and where the failure to be qualified could have a Material Adverse Effect;
(iii) certified copies of resolutions (or, in the case of Parent, an extract thereof) of each of the Loan Parties’ respective Boards of Directors (and shareholder with the transaction contemplated respect to Mesoblast UK and quotaholder with respect to Mesoblast SUI) evidencing (i) approval of this Amendment and other transactions evidenced by this Fourth Amendment.Amendment and the Amendment Documents; (ii) authorizing the issuance of the First Amendment Warrants; (iii) authorizing a specified person or persons to execute this Amendment and the Amendment Documents; and (iv) (with respect to Parent and Mesoblast UK) (A) including a statement of corporate benefit; (B) acknowledging that the Board of Directors are acting for a proper purpose and that this Amendment and the Amendment Documents are in the best interests of that Loan Party and for its commercial benefit; and (C) acknowledging that the relevant Loan Party was solvent and there were reasonable grounds to expect that the relevant Loan Party would continue 4856-2614-8927 v.7 to be solvent after executing this Amendment and complying with its obligations under the Amendment Documents and the other Loan Documents;
(fiv) The Agent a legal opinion of the Loan Parties’ U.S. counsel dated as of the Amendment Effective Date; and
(v) a perfection certificate and Lenders shall have received such other documents disclosure letter supplement, dated as of the Amendment Effective Date, and information regarding Credit Parties signed by an officer of Parent, in form and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant substance satisfactory to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationAgent.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of Section
Section 2.01 of this Agreement shall become --------------- effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of "Effective Date") -------------- on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders There shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 28, 1996.
(b) Company There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have delivered a Material Adverse Effect or (ii) purports to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to affect the Tranche C Term Loans for all purposes hereof)legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) Company Nothing shall have paid all fees and other amounts due and payable on or prior come to the Fourth Amendment Effective Dateattention of the Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, includingincorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lenders shall have been given such access to the extent invoicedmanagement, reimbursement or other payment records, books of all out-of-pocket expenses required to be reimbursed or paid by account, contracts and properties of the Company hereunder or under any other Credit DocumentBorrower and its Subsidiaries as they shall have requested.
(d) Administration Agent All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders shall have received originally executed copies of that restrains, prevents or imposes materially adverse conditions upon the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agenttransactions contemplated hereby.
(e) Each Credit Party The Borrower shall have obtained all material consents necessary or advisable notified each Lender and the Agents in connection with writing as to the transaction contemplated by this Fourth Amendmentproposed Effective Date.
(f) The Agent Borrower shall have paid all accrued fees and expenses of the Agents and the Lenders (including the accrued fees and expenses of counsel to the Agents).
(g) On the Effective Date, the following statements shall be true and the Agents shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(h) The Agents shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agents and in sufficient copies for each Lender:
(i) The Guarantee Agreement, duly executed by each Guarantor existing on the Effective Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement, certified copies of the resolutions of the Board of Directors of each Guarantor approving the Guarantee Agreement and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower or such Guarantor, as applicable, authorized to sign this Agreement, each other Loan Document to which it is a party and the other documents to be delivered hereunder or thereunder.
(iv) A favorable opinion of Paul W. Heldman, Vice ▇▇▇▇▇▇▇▇▇, Secretary and General Counsel for the Borrower, substantially in the form of Exhibit D hereto and as to such other documents matters as any Lender through the Agents may reasonably request.
(v) A favorable opinion of Shearman & Sterling, counsel for the Agents, in form and information regarding substance satisfactory to the Agents.
(i) The termination of the commitments of the lenders and the payment in full of all Debt outstanding under (i) the Senior Competitive Advance and Revolving Credit Parties Agreement dated as of July 19, 1994 among the Borrower, certain of its Subsidiaries, the lenders parties thereto, Chase, as swing line bank, issuing bank and administrative agent, and Citibank, as swing line bank, administrative agent and paying agent, and (ii) the Credit Agreement dated as of December 13, 1996 among the Agents or Lenders may reasonably request. Upon Borrower, the effectiveness banking institutions parties thereto, The Bank of this Fourth Amendment pursuant to the conditions set forth in this Section IINew York, all outstanding amounts under the Tranche A Term Loans as agent, and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requestsBNY Capital Markets, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationInc., as arranging agent.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Kroger Co)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 29, 2012 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by An executed copy of this Fourth AmendmentAgreement from each party hereto.
(fg) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 26, 2020 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on precedent have been satisfied (or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"waived in accordance with Section 8.01):
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders There shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since February 3, 2024.
(b) Company The Borrower shall have delivered to Administrative Agent a fully executed paid all accrued fees and delivered Fourth Amendment Date Certificate expenses of the Paying Agent, the Issuing Banks and the Lenders (which shall be deemed to be a Funding Notice with respect including the accrued fees and expenses of counsel to the Tranche C Term Loans for all purposes hereof)Paying Agent) provided that, in the case of expenses, invoices shall have been presented to the Borrower at least three Business Days prior to the Effective Date.
(c) Company shall have paid all fees and other amounts due and payable on or prior to On the Fourth Amendment Effective Date, includingthe following statements shall be true and the Paying Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be true and correct in all material respects on and as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects),
(ii) No event has occurred and is continuing that constitutes a Default, and
(iii) the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Existing Credit DocumentAgreement shall have been terminated.
(d) Administration The Paying Agent and the Lenders shall have received originally executed on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Paying Agent:
(i) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents.
(ii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement, each other Loan Document and the other documents to be delivered hereunder or thereunder.
(iii) A favorable written opinion of Akin(i) C▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, GumpSenior Vice President, StraussGeneral Counsel and Secretary for the Borrower, Hauer & Feld, L.L.P., special counsand of (ii) W▇▇▇ ▇▇r t▇▇▇▇▇ & M▇redit Parties▇▇▇▇ LLP, special New York counsel for the Borrower, as to such matters as Administrative Agent may reasonably requestthe enforceability of this Agreement under New York law, dated the Fourth Amendment Effective Date and otherwise in each case, in customary form and substance reasonably satisfactory to Administration Agentsubstance.
(eiv) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant at least three Business Days prior to the conditions set forth Effective Date, any documentation or other evidence reasonably requested by the Paying Agent or any Lender in this Section IIorder to comply with all necessary “know your customer” or other similar checks under all applicable laws and regulations and, all outstanding amounts to the extent the Borrower qualifies as a “legal entity customer” under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied Beneficial Ownership Regulation, a duly executed Beneficial Ownership Certification, in full and if the Company so requestseach case, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationextent requested at least five days prior to the anticipated Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Kroger Co)
Conditions Precedent to Effectiveness. The effectiveness This Agreement and the obligations of the amendments set forth at Section I hereof is 2019 Incremental Lenders to provide the Term B-2 Loans are subject to the satisfactionsatisfaction or waiver in accordance with Section 12.12 of the Credit Agreement, prior or waiverconcurrently with the making of such Term B-2 Loans, of the following conditions on precedent (upon satisfaction or before waiver of such conditions, such date being referred to herein as the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"“First Amendment Effective Date”):
(ai) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders The Administrative Agent shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid received all fees and other amounts previously agreed in writing by the Administrative Agent (or any of its affiliates) and the Borrower to be due and payable on or prior to the Fourth First Amendment Effective DateDate in the amounts and at the times so specified, including, to including the extent invoiced, payment of the Upfront Fee and reimbursement or other payment of all reasonable and documented or invoiced out-of-pocket expenses (which, in the case of legal fees, shall be limited to the reasonable and documented or invoiced fees, disbursements and other charges of one primary outside counsel and of any relevant local counsel to the Administrative Agent and Lenders, taken as a whole) required to be reimbursed or paid by the Company hereunder or any Loan Party under any other Credit Documentletter agreement previously entered into among UBS Securities LLC and the Borrower, in each case, for which reasonably detailed invoices have been presented to Borrower at least two (2) Business Days prior to the First Amendment Effective Date.
(dii) Administration The representations and warranties set forth in Section 5 of this Agreement and Article V of the Credit Agreement shall be true and correct in all material respects on and as of the First Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date, and except that such materiality qualifier shall not be applicable to any representation and warranty that is already qualified by materiality.
(iii) The Administrative Agent and the Lenders 2019 Incremental Lender shall have received originally executed copies received, at least three Business Days (or such shorter period as otherwise agreed) prior to the First Amendment Effective Date, all documentation and other information about the Borrower and the Subsidiary Guarantors as has been reasonably requested in writing at least ten (10) days prior to the First Amendment Effective Date by the Administrative Agent and such 2019 Incremental Lenders that they reasonably determine is required by Governmental Authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, a beneficial ownership certification in relation to the Borrower.
(iv) The Administrative Agent shall have received, a legal opinion of (x) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Loan Parties and (y) Stanley, Esrey & ▇▇▇▇▇▇▇, LLP, special Georgia counsel to the Loan Parties, each of which opinions shall be addressed to the Administrative Agent, the Collateral Agent and the Lenders, dated as of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth First Amendment Effective Date and otherwise shall be in form and substance reasonably satisfactory to Administration the Administrative Agent.
(ev) Each Credit Party The Administrative Agent shall have obtained all material consents necessary or advisable in connection with received a counterpart signature page of this Agreement, executed and delivered by the transaction contemplated by this Fourth AmendmentBorrower, Holdings, each Subsidiary Guarantor, the Administrative Agent, the 2019 Incremental Lenders.
(fvi) The Administrative Agent and Lenders shall have received a certificate of each Loan Party, dated the First Amendment Effective Date signed by the secretary or any assistant secretary of such Loan Party and attested to by an Authorized Officer of such Loan Party, with the following insertions and attachments: (i) certified organizational authorizations, incumbency certifications, the certificate of incorporation or other documents similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and information regarding Credit Parties bylaws or other similar Organizational Document of each Loan Party certified as being in full force and effect on the First Amendment Effective Date and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization as of a recent date.
(vii) At the time of, and immediately after giving effect to, the Borrowing of Term B-2 Loans and the Credit Agreement use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing or resulted therefrom.
(viii) The Administrative Agent shall have received a certificate, dated the First Amendment Effective Date and signed on behalf of each of Borrower and Holdings, as applicable, certifying on behalf of the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to Borrower and Holdings that the conditions precedent set forth in paragraphs (ii) and (vii) of this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans 4 have been satisfied or waived on such date.
(ix) The Administrative Agent shall be paid and satisfied in full and if the Company so requests, each Lender who has previously have received a Tranche A Term Loan Note solvency certificate from the chief financial officer (or Tranche B Term Loan Note shall deliver such Note a similar Authorized Officer) of the Borrower and Holdings in the form of Exhibit J to the Company for cancellationCredit Agreement, which certifies that the Borrower and Holdings and its Restricted Subsidiaries, on a consolidated basis, are, and immediately after giving effect to the Incremental Transactions, will be, Solvent.
(x) The Administrative Agent shall have received a Notice of Borrowing with respect to the Term B-2 Loans in the form of Exhibit F to the Credit Agreement.
Appears in 1 contract
Sources: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of "Effective Date") on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyExcept for the Disclosed Matters, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders no Material Adverse Change shall have indicated their consent by the execution occurred and delivery of the signature pages hereof to the Administrative Agentbe continuing since December 31, 2006.
(b) Company There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) except for the Disclosed Matters, could be reasonably likely to have delivered a Material Adverse Effect or (ii) purports to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to affect the Tranche C Term Loans for all purposes hereof)legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) Company The Borrower shall have paid all fees notified each Lender and other amounts due and payable on or prior the Agent in writing as to the Fourth Amendment proposed Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders shall have received originally executed copies (including the accrued fees and expenses of counsel to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as Agent (but not other Lenders)) required to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentbe paid by it.
(e) Each Credit Party On the Effective Date, the following statements shall be true and the Agent shall have obtained all material consents necessary or advisable received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in connection with Section 4.01 are correct on and as of the transaction contemplated by this Fourth AmendmentEffective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent and Lenders shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.15.
(ii) Certified copies of the resolutions of the board of directors or other governing body of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate or similar action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of (A) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Borrower, and information regarding Credit Parties (B) ▇▇▇▇▇▇ ▇. ▇▇▇, Associate General Counsel, Corporate, Finance and Ventures of the Credit Agreement as Borrower, substantially in the Agents or Lenders may reasonably request. Upon form of Exhibits D-1 and D-2 hereto, respectively.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for the effectiveness of this Fourth Amendment pursuant Agent, in form and substance satisfactory to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationAgent.
Appears in 1 contract
Sources: Bridge Credit Agreement (Xerox Corp)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is this Amendment shall be subject to the satisfaction, satisfaction or waiver, waiver of only the following conditions on or before precedent (first the date hereof (on which such conditions precedent are so satisfied or waived, the "FOURTH AMENDMENT EFFECTIVE DATE"“Sixth Amendment Effective Date”):
(ai) Companythe Borrower, Holdingsthe Administrative Agent, Requisite Lenders each Issuing Lender and each Lender with a Commitment on the Tranche C Term Loan Lenders Sixth Amendment Effective Date (after giving effect thereto)shall have signed a counterpart hereof (whether the same or different counterparts) and shall have indicated their consent delivered (including by way of facsimile, pdf or other electronic transmission) the execution and delivery of the signature pages hereof same to the Administrative Agent.;
(bii) Company the Administrative Agent shall have delivered received a favorable customary legal opinion of ▇▇▇▇▇ Day, counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders party to this Amendment on the Sixth Amendment Effective Date and dated the Sixth Amendment Effective Date covering such matters incidental to this Amendment and the transactions contemplated hereby as the Administrative Agent may reasonably request;
(iii) the Administrative Agent shall have received (A) true and complete copies of resolutions of the board of directors of the Borrower approving and authorizing the execution, delivery and performance of this Amendment and the Amended Credit Agreement, certified as of the Sixth Amendment Effective Date by an Authorized Representative of the Borrower as being in full force and effect without modification or amendment and (B) a fully executed certificate of existence for the Borrower as of a recent date from the jurisdiction in which the Borrower is organized;
(iv) all of the representations and delivered Fourth Amendment Date Certificate (which warranties made pursuant to Section 5 hereof shall be deemed true and correct in all material respects on the Sixth Amendment Effective Date, both before and after giving effect to this Amendment, with the same effect as though such representations and warranties had been made on and as of the Sixth Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be a Funding Notice with respect true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date);
(v) both before and immediately after giving effect to the Tranche C Term Loans for all purposes hereof).Reallocation and the occurrence of the Sixth Amendment Effective Date, since December 31, 2016, nothing shall have occurred (and neither the Administrative Agent nor the Lenders shall have become aware of any facts or conditions not previously known) which the Administrative Agent or the Lenders shall determine has had, or could reasonably be expected to have, a Material Adverse Effect;
(cvi) Company the Borrower shall have paid all fees reasonable and documented out-of-pocket costs, fees, expenses of the Administrative Agent required to be paid or reimbursed pursuant to Section 13.01 of the Amended Credit Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent, in each case, invoiced at least three Business Days prior to the date hereof, and other amounts due and payable owing on or prior the Sixth Amendment Effective Date pursuant to the Fourth Fee Letter, dated October 27, 2017, among the Borrower, the Administrative Agent and Deutsche Bank Securities Inc.;
(vii) the Borrower shall have paid (or cause to have been paid) on the Sixth Amendment Effective Date to the Administrative Agent for the account of each Lender party hereto, a one-time amendment fee (the “Amendment Fee”) in an amount, with respect to each Lender, equal to three basis points (0.03%) on existing Loans and Commitments under the Existing Credit Agreement that are converted into new Loans and/or Commitments under the Amended Credit Agreement and seven and one-half basis points (0.075%) on new or additional Loans and Commitments provided under the Amended Credit Agreement. The Amendment Fee will be paid on the aggregate amount of final allocations of commitments of each Lender and is payable in Dollars;
(viii) the Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit H to the Existing Credit Agreement, which shall be addressed to the Administrative Agent and the Lenders and dated the Sixth Amendment Effective Date, includingsetting forth the conclusions that, immediately after giving effect to the extent invoicedtransactions contemplated in this Amendment and the incurrence of the financings contemplated hereby, reimbursement each of the Borrower and the Borrower and its Subsidiaries, taken as a whole, is or other payment of all out-of-pocket expenses required are not insolvent and will not be rendered insolvent, and will not be left with unreasonably small capital with which to be reimbursed engage in its or paid by the Company hereunder their businesses and will not have incurred debts beyond its or under any other Credit Document.their ability to pay such debts as they mature;
(dix) Administration the Administrative Agent and the Lenders shall have received originally executed copies a written certification by an Authorized Officer of the favorable written opinion Borrower certifying that the conditions precedent specified in Section 4(iv), (v) and (x) have been satisfied;
(x) both immediately before and also immediately after giving effect to the transactions contemplated hereunder and the incurrence and application of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Revolving Loans on the Sixth Amendment Effective Date and otherwise the effectiveness of the Amendments, there shall exist no Default or Event of Default (with each of such terms being defined in form and substance reasonably satisfactory to Administration Agent.a manner consistent with the manner in which they are defined in the Amended Credit Agreement) under the Amended Credit Agreement; and
(exi) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Administrative Agent and Lenders shall have received such all documentation and other documents information required by regulatory authorities under applicable “know your customer” and information regarding Credit Parties anti-money laundering rules and regulations, including without limitation the Credit Agreement as PATRIOT Act, that has been reasonably requested by the Agents or Lenders may reasonably request. Upon Lead Arranger at least five (5) business days in advance of the effectiveness of this Fourth Sixth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationEffective Date.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Collateral Custodian, the Calculation Agent or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements, Requisite Lenders instruments, certificates and other documents listed on Schedule II have been duly executed by, and delivered to, the Tranche C Term Loan Lenders shall have indicated their consent by the execution parties hereto and delivery of the signature pages hereof to the Administrative Agent.thereto;
(bii) Company shall have delivered to Administrative Agent a fully executed all up-front expenses and delivered Fourth Amendment Date Certificate fees (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees including reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses legal fees and any fees required under the Fee Letters) that are required to be reimbursed paid hereunder or paid by the Company hereunder or under any other Credit Document.Fee Letters and are invoiced at least three (3) Business Days prior to the Closing Date have been paid in full;
(diii) Administration Agent the representations contained in Sections 4.01, 4.02 and 4.06 are true and correct in all material respects (except that any representation qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) (as certified by the Borrower);
(iv) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary or reasonably required in connection with the transactions contemplated by this Agreement and the Lenders other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which could reasonably be expected to have such effect;
(v) no action, proceeding or investigation has been instituted or, to the knowledge of the Borrower after due inquiry, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lenders’ sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(vi) the Borrower shall have obtained an investment grade rating (BBB- or higher) from a Nationally Recognized Statistical Rating Organization, such as ▇▇▇▇▇ Bond Rating Agency, and the Initial Lender shall have a received originally executed copies a copy of any rating letter issued in connection therewith; and
(vii) the Administrative Agent has received all documentation and other information requested by the Administrative Agent acting at the direction of the favorable written opinion of AkinMajority Lenders or required by regulatory authorities with respect to the Borrower and the Calculation Agent under applicable “know your customer” and anti-money laundering rules and regulations, Gumpincluding the USA PATRIOT Act, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise all in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof this Agreement is subject to the satisfaction, or waiver, fulfillment of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery The making of the signature pages hereof Commitment, the making of the initial Advance and issuance of the initial Letter of Credit shall not contravene any Applicable Law applicable to the Administrative AgentLender, any Lender, or the Issuing Bank.
(b) Company No Material Adverse Change, as determined by the Administrative Lender, shall have delivered to Administrative Agent a fully executed occurred and delivered Fourth Amendment Date Certificate be continuing since January 31, 1999 (which shall be deemed to be a Funding Notice with respect to other than the Tranche C Term Loans for all purposes hereofPet City Holdings Charges).
(c) The Company shall have paid all fees and other amounts due and payable on or prior delivered to the Fourth Amendment Effective DateAdministrative Lender a Certificate, includingdated the effective date, to executed by a duly authorized officer, certifying that (i) no Default or Event of Default has occurred and is continuing, (ii) the extent invoicedrepresentations and warranties set forth in Article V hereof are true and correct, reimbursement or other payment of and (iii) it has complied with all out-of-pocket expenses required agreements and conditions to be reimbursed or paid complied with by it under the Company hereunder or under any other Credit DocumentLoan Papers by such date.
(d) Administration Agent and the Lenders The Company shall have received originally executed copies of delivered to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably requestLender a Secretary's Certificate, dated the Fourth Amendment Effective Date effective date, certifying (i) that copies of its certificate of incorporation and otherwise bylaws previously delivered to the Administrative Lender are true and complete, and in form full force and substance reasonably satisfactory effect, without amendment except as shown, (ii) that a copy of its resolutions authorizing execution and delivery of this Agreement and any other Loan Papers attached thereto is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified, or revoked, and constitute all resolutions adopted with respect to Administration Agentthis loan transaction, and (iii) to the incumbency, name, and signature of each officer authorized to sign this Agreement and any other Loan Papers on its behalf. The Administrative Lender, Lenders, and Issuing Bank may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in writing to the contrary.
(e) Each Credit Party Domestic Subsidiary shall have obtained delivered to the Administrative Lender a Secretary's Certificate, dated the effective date, certifying (i) that copies of its certificate of incorporation and bylaws previously delivered to the Administrative Lender are true and complete, and in full force and effect, without amendment except as shown, (ii) that a copy of its resolutions authorizing execution and delivery of the Loan Papers to which it is party are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified, or revoked, and constitute all material consents necessary or advisable resolutions adopted with respect to this loan transaction, and (iii) to the incumbency, name, and signature of each officer authorized to sign the Loan Papers to which it is party. The Administrative Lender, Lenders, and Issuing Bank may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in connection with writing to the transaction contemplated by this Fourth Amendmentcontrary.
(f) The Agent and Lenders Administrative Lender shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness opinions of this Fourth Amendment pursuant counsel to the conditions set forth in this Section IICompany, all outstanding amounts under dated the Tranche A Term Loans and Tranche B Term Loans effective date, which counsel shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note acceptable to the Company for cancellation.Administrative
Appears in 1 contract
Sources: Credit Agreement (Petsmart Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders There shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since May 31, 2016.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Holding Company shall or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have delivered a Material Adverse Effect or (ii) purports to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to affect the Tranche C Term Loans for all purposes hereof)legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) Company All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have paid all fees and other amounts due and payable on or prior been obtained (without the imposition of any conditions that are not acceptable to the Fourth Amendment Effective DateLenders) and shall remain in effect, includingand no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, to prevents or imposes materially adverse conditions upon the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenttransactions contemplated hereby.
(d) Administration The Borrowers shall have paid all accrued fees and expenses of the Agent and the Lenders shall have received originally executed copies (including the accrued fees and expenses of counsel to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent).
(e) Each Credit Party On the Effective Date, the following statements shall be true and the Agent shall have obtained all material consents necessary or advisable received for the account of each Lender a certificate signed by a duly authorized officer of the Holding Company, dated the Effective Date, stating that: NAI-1502274953v9
(i) The representations and warranties contained in connection with Section 4.01 are correct on and as of the transaction contemplated by this Fourth AmendmentEffective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent and Lenders shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for any Revolving Credit Notes) in sufficient copies for each Lender:
(i) (A) Counterparts of this Agreement, executed by a Responsible Officer of each Borrower and a duly authorized officer of each Lender, (B) the Revolving Credit Notes executed by a Responsible Officer of each Borrower to the order of any Lenders requesting the same, and (C) counterparts of any other Loan Documents executed by a Responsible Officer of the applicable Borrower and a duly authorized officer of each other Person party thereto.
(ii) Certified copies of the resolutions of the Board of Directors of each Borrower approving this Agreement and any Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and any Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of each Borrower certifying the names and true signatures of the officers of such Borrower authorized to sign this Agreement, the Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP substantially in the form of Exhibit D hereto and as to such other documents and information regarding Credit Parties and the Credit Agreement matters as the Agents or Lenders Agent may reasonably request. Upon .
(v) Such documents and certificates as the effectiveness Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrowers, and any other legal matters relating to the Borrowers or the Loan Documents, all in form and substance satisfactory to the Agent and its counsel and as further described in the list of closing documents attached as Exhibit F.
(g) The Borrowers shall have terminated the commitments, and, prior to or simultaneously with the initial Borrowing hereunder, paid in full all Debt, interest, fees and other amounts outstanding, under the Existing Credit Agreement, and each of the Lenders that is a party to such credit facility hereby waives, upon execution of this Fourth Amendment pursuant Agreement, the five Business Days’ notice required by Section 2.05 of said Credit Agreement relating to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationtermination of commitments thereunder.
Appears in 1 contract
Sources: Credit Agreement (Scholastic Corp)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, This Amendment shall not be effective until each of the following conditions on precedent has been fulfilled prior to or before concurrently herewith, each in form and substance satisfactory to, and otherwise to the date hereof satisfaction of, the Administrative Agent and the Required Lenders (such date, the "FOURTH AMENDMENT EFFECTIVE DATE"“Third Amendment Effective Date”):
(a) CompanySubstantially concurrently with the Third Amendment Effective Date, Holdingsthe Borrower shall have prepaid the Term Loans outstanding as of the Third Amendment Effective Date in full, Requisite Lenders together with any accrued interest thereon and the Tranche C Term Loan Lenders shall have indicated their consent by prepayment premium with respect thereto with the execution and delivery proceeds of the signature pages hereof to the Administrative AgentPermitted Senior Indebtedness.
(b) Company The Administrative Agent shall have delivered to Administrative Agent a fully received duly executed counterparts of this Amendment from the Borrower and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof)Lenders party hereto constituting the Required Lenders.
(c) Company Immediately prior to and immediately after giving effect to this Amendment, no Default or Event of Default shall have paid all fees occurred and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documentcontinuing.
(d) Administration Agent Immediately prior to and immediately after giving effect to this Amendment, the representations and warranties herein and in the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date hereof, as though made on such date (except to the extent that (i) such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, or (ii) such representations and warranties are qualified by materiality in the text thereof, in which case they shall be true and correct in all respects).
(i) The Required Lenders and the Administrative Agent shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Partiesall amounts required to be paid pursuant to Section 4 and (ii) O’Melveny, as counsel to such matters as Administrative Agent may reasonably requestcertain Term Lenders, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents payment of their reasonable fees and information regarding Credit Parties and expense to the extent required pursuant to Section 10.5 of the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant Agreement, in each case to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note extent an invoice is provided to the Company for cancellationBorrower at least three (3) Business Days prior to the Third Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 31, 2022 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This amendment and restatement of the amendments set forth at Section I hereof is subject to Existing Credit Agreement shall become effective on and as of the satisfactionfirst date (such first date, or waiver, of the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) The Administrative Agent shall not have received on or prior to the Effective Date notice from Required Lenders that a Material Adverse Change since December 31, 2021, has occurred and is continuing.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries, including any Environmental Action, pending or, to the best of the Borrower’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be determined adversely and, if determined adversely, would have a Material Adverse Effect or (ii) purports to adversely affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby.
(c) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date, and the Administrative Agent shall have notified each Lender thereof.
(d) The Borrower shall have paid all accrued and invoiced fees and reasonable expenses of the Administrative Agent, the Lenders and the Issuing Banks (including the accrued and invoiced reasonable fees and out of pocket expenses of counsel to the Administrative Agent).
(e) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender and Issuing Bank a certificate signed by the President, a Vice President or a Financial Officer of the Borrower, dated the Effective Date, stating that:
(i) The the representations and warranties contained in Section 4.01 of this Agreement are correct in all material respects on and as of the Effective Date; and
(ii) Nono event has occurred and is continuing that constitutes a Default.
(f) The Administrative Agent shall have received on or before the date hereof Effective Date the following, each dated such day, in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender:
(i) This Agreement, executed by each of the parties hereto (which, subject to SECTIONSection 8.12. (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).
(ii) Certified copies of the resolutions of the board of directors of the Borrower approving this Agreement of the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder.
(iv) A guarantee (the "FOURTH AMENDMENT EFFECTIVE DATE"):“Guarantee”) duly executed by Ovintiv Canada ULC, substantially in the form previously provided to the Administrative Agent, together with (A) certified copies of the resolutions of the board of directors of Ovintiv Canada ULC approving its Guarantee, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to such Guarantee and (B) a certificate of an officer of Ovintiv Canada ULC certifying the names and true signatures of the officers of Ovintiv Canada ULC authorized to sign such Guarantee.
(av) CompanyAn opinion of ▇▇▇▇, Holdings▇▇▇▇▇, Requisite Lenders ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Borrower and certain of its U.S. Subsidiaries, substantially in the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery form of the signature pages hereof Exhibit DB hereto or otherwise in a form reasonably satisfactory to the Administrative Agent.
(bvi) Company shall have delivered An opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Canadian counsel to Administrative Agent Ovintiv Canada ULC, substantially in the form of Exhibit EC hereto or otherwise in a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect form reasonably satisfactory to the Tranche C Term Loans for all purposes hereof)Administrative Agent.
(cg) Company Borrower shall have paid made payment in full of the aggregate principal amount of all advances outstanding, under the Existing Credit Agreement, together with accrued interest thereon and all fees and other amounts due invoiced and payable on or owing to the lenders thereunder to the Effective Date.
(h) The Administrative Agent shall have received, prior to the Fourth Amendment Effective Date, includingall documentation and other information regarding the Borrower and its Subsidiaries that will execute a Guarantee pursuant to Section 3.01(f)(iv) requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act to the extent invoiced, reimbursement or other payment requested in writing of all out-of-pocket expenses required the Borrower at least ten (10) days prior to be reimbursed or paid by the Company hereunder or under any other Credit DocumentEffective Date.
(di) Administration Agent and Provided (i) such information is reasonably requested from the Lenders shall have received originally executed copies of Borrower and/or Ovintiv Canada ULC at least five (5) Business Days prior to the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form (ii) Borrower and/or Ovintiv Canada ULC qualify as a “legal entity customer” under the Beneficial Ownership Regulation, then the Administrative Agent and substance reasonably satisfactory each requesting Lender shall receive, at least three (3) days prior to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable the Effective Date, in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant Beneficial Ownership Regulation, a Beneficial Ownership Certification with respect to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationBorrower and/or Ovintiv Canada ULC.
Appears in 1 contract
Sources: Credit Agreement (Ovintiv Inc.)
Conditions Precedent to Effectiveness. The effectiveness of (a) This Agreement becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the amendments set forth at Section I hereof is subject Collateral Custodian, the Facility Servicer or the Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the satisfaction, or waiver, satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements, Requisite Lenders instruments, certificates and other documents listed on Schedule IV have been duly executed by, and delivered to, the parties hereto and thereto;
(ii) the Collection Account has been established pursuant to the Account Control Agreement;
(iii) the Borrower shall have obtained an equivalent rating of BBB-, BBB(low) or Baa3 or higher on the credit facility evidenced by this Agreement from a NRSRO, and the Tranche C Term Loan Lenders Initial Lender shall have indicated their consent a received a copy of any rating letter issued in connection therewith;
(iv) all up-front expenses and fees (including reasonable legal fees and expenses and any fees and expenses required under the Fee Letters and pursuant to Schedule VII) that are required to be paid hereunder or by the execution Fee Letters or Schedule VII have been paid in full;
(v) the Borrower has provided the Facility Servicer and delivery the Initial Lender with a copy of the signature pages hereof Valuation Policy as in effect on the Closing Date;
(vi) the representations contained in Sections 4.01 and 4.02 are true and correct;
(vii) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Lenders) in connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which in the reasonable judgment of the Lenders could reasonably be expected to have such effect;
(viii) no action, proceeding or investigation has been instituted, threatened in writing or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby, or which, in the Initial Lender’s sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby;
(ix) the Administrative Agent.
(b) Company shall have delivered to Agent has received all documentation and other information requested by the Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice acting at the direction of the Majority Lenders or required by regulatory authorities with respect to any Loan Party under applicable “know your customer” and AML Laws, including the Tranche C Term Loans for USA PATRIOT Act, all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.the Administrative Agent and the Majority Lenders; and
(ex) Each Credit Party shall have obtained the Facility Servicer has received all material consents necessary or advisable in connection documentation and other information requested by the Facility Servicer required by regulatory authorities with respect to Borrower, the transaction contemplated by this Fourth Amendment.
(f) The Administrative Agent and the Lenders shall have received such other documents under applicable “know your customer” and information regarding Credit Parties Anti-Money Laundering Laws, including the USA Patriot Act, all in form and the Credit Agreement as the Agents or Lenders may substance reasonably request. Upon the effectiveness of this Fourth Amendment pursuant satisfactory to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationFacility Servicer.
Appears in 1 contract
Sources: Loan and Servicing Agreement (FS Credit Real Estate Income Trust, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective, and the obligations of the amendments set forth at Section I hereof is subject Lenders to make Revolving Credit Advances and of the satisfactionIssuing Lenders to issue Letters of Credit hereunder shall become effective, or waiver, on and as of the first date (the “Effective Date”) on which the following conditions on precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since September 30, 2018.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters disclosed in the SEC Reports prior to the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):
“Disclosed Litigation”) or (aii) Companypurports to affect the legality, Holdingsvalidity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by been no change in the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall Disclosed Litigation that would have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof)Material Adverse Effect.
(c) Company All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have paid all fees and other amounts due and payable on or prior been obtained (without the imposition of any conditions that are not acceptable to the Fourth Amendment Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Borrower shall have paid, or will pay with the initial Advance on the Effective Date, all accrued fees and expenses of the Agent and the Lenders (including, to the extent invoiced, reimbursement or other payment the reasonable and documented accrued fees and expenses of all out-of-pocket expenses required counsel to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment).
(f) The On the Effective Date, the following statements shall be true and the Agent and Lenders shall have received such other documents a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and information regarding warranties contained in Section 4.01 are correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to a Material Adverse Effect shall be correct in all respects) on and as of the Effective Date,
(ii) No Material Adverse Change has occurred since September 30, 2018, and
(iii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Revolving Credit Parties Notes and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness Swing Line Note) in sufficient copies for each Lender:
(i) Either (x) a counterpart of this Fourth Amendment Agreement signed on behalf of the Agent, the Borrower and each Initial Lender or (y) evidence satisfactory to the Agent (which may include an electronic transmission) that such party has signed a counterpart of this Agreement.
(ii) The Revolving Credit Notes to the Lenders to the extent requested by any Lender pursuant to the conditions set forth in this Section II2.17, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Swing Line Note to the Company for cancellationSwing Line Lender to the extent requested by the Swing Line Lender.
(iii) Such documents and certificates as the Agent may reasonably request relating to the organization, existence and good standing of the Borrower.
(iv) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(v) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
Appears in 1 contract
Sources: Credit Agreement (Ugi Utilities Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 28, 2019 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to the Existing Credit Agreement and (ii) payment in full of all amounts owing under the Existing Credit Agreement. Each of the Lenders that is a party to the Existing Credit Agreement hereby waives the requirement of prior notice of termination of the commitments under the Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness This Amendment and the obligations of the amendments set forth at Section I hereof Additional Refinancing Lender to provide the Amendment No. 6 Refinancing Term Loan Commitments is subject to the satisfaction, satisfaction or waiver, waiver in accordance with Section 12.12 of the Credit Agreement of the following conditions on precedent (upon satisfaction or before waiver of such conditions, such date being referred to herein as the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"“Sixth Amendment Effective Date”):
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders 5.1 The Agents shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid received all fees and other amounts previously agreed in writing by the Agents (or any of its affiliates) and the Borrower to be due and payable on or prior to the Fourth Sixth Amendment Effective DateDate in the amounts and at the times so specified, including, to the extent invoiced, including reimbursement or other payment of all reasonable and documented or invoiced out-of-pocket expenses (which, in the case of legal fees, shall be limited to the reasonable and documented or invoiced fees, disbursements and other charges of one primary outside counsel and of any relevant local counsel to the Agents and Lenders, taken as a whole) required to be reimbursed or paid by the Company hereunder or any Loan Party under any other Credit Documentletter agreement previously entered into among the Sixth Amendment Arrangers and the Borrower, in each case, for which reasonably detailed invoices have been presented to Borrower at least two (2) Business Days prior to the Sixth Amendment Effective Date.
(d) Administration 5.2 The representations and warranties set forth in Section 6 of this Amendment and Article V of the Credit Agreement shall be true and correct in all material respects on and as of the Sixth Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date, and except that such materiality qualifier shall not be applicable to any representation and warranty that is already qualified by materiality.
5.3 The Successor Agent and the Lenders Additional Refinancing Lender shall have received originally executed copies received, at least three Business Days (or such shorter period as otherwise agreed) prior to the Sixth Amendment Effective Date, (a) all documentation and other information about the Borrower and the Subsidiary Guarantors as has been reasonably requested in writing at least ten (10) days prior to the Sixth Amendment Effective Date by the Successor Agent and the Additional Refinancing Lender that they reasonably determine is required by Governmental Authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and (b) a Beneficial Ownership Certification with respect to any Loan Party that qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230.
5.4 The Successor Agent shall have received, a legal opinion of (x) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties and (y) ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special Georgia counsel to the Loan Parties, each of which opinions shall be addressed to the Successor Agent and the Lenders, dated as of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Sixth Amendment Effective Date and otherwise shall be in form and substance reasonably satisfactory to Administration the Successor Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) 5.5 The Successor Agent and Lenders shall have received such other documents a counterpart signature page of (i) this Amendment, executed and information regarding Credit Parties delivered by the Borrower, Holdings, each Subsidiary Guarantor, the Agents and the Credit Agreement Additional Refinancing Lender (which shall constitute 100% of all Lenders outstanding prior to this Amendment) and (ii) the Successor Agent Agreement, executed and delivered by the Borrower and the Agents.
5.6 The Successor Agent shall have received a certificate of each Loan Party, dated the Sixth Amendment Effective Date signed by the secretary or any assistant secretary of such Loan Party and attested to by an Authorized Officer of such Loan Party, with the following insertions and attachments: (i) certified organizational authorizations, incumbency certifications, the certificate of incorporation or other similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified as being in full force and effect on the Agents Sixth Amendment Effective Date and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization as of a recent date.
5.7 At the time of, and immediately after giving effect to, this Amendment, no Default or Lenders may reasonably request. Upon Event of Default shall have occurred and be continuing or resulted therefrom.
5.8 The Successor Agent shall have received a certificate, dated the effectiveness Sixth Amendment Effective Date and signed on behalf of this Fourth Amendment pursuant to each of Borrower and Holdings, as applicable, certifying on behalf of the Borrower and Holdings that the conditions precedent set forth in this Section IISections 5.2 and 5.7 have been satisfied or waived on such date.
5.9 The Successor Agent shall have received a solvency certificate from the chief financial officer (or a similar Authorized Officer) of the Borrower and Holdings in the form of Exhibit J to the Credit Agreement, which certifies that the Borrower and Holdings and its Restricted Subsidiaries, on a consolidated basis, are, and immediately after giving effect to the transactions contemplated hereby, will be, Solvent.
5.10 The Successor Agent shall have received a Notice of Borrowing with respect to the Amendment No. 6 Refinancing Term Loans in the form of Exhibit F to the Credit Agreement.
5.11 The Borrower shall have paid to the Successor Agent, for the ratable account of the Lenders holding Term Loans outstanding prior to the Sixth Amendment Effective Date, all outstanding amounts under the Tranche A accrued and unpaid interest on such Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if to, but not including, the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationSixth Amendment Effective Date.
Appears in 1 contract
Sources: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders There shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since January 31, 2018.
(b) Company There shall exist no action, suit, investigation, litigation or proceeding against the Borrower or any of its Subsidiaries pending or, to Borrower’s knowledge, threatened in writing before any court, governmental agency or arbitrator that (i) could be reasonably likely to have delivered a Material Adverse Effect or (ii) could reasonably be expected to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to adversely affect the Tranche C Term Loans for all purposes hereof)legality, validity or enforceability of the Loan Documents.
(c) Company All material governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have paid all fees and other amounts due and payable on or prior been obtained (without the imposition of any conditions that are not acceptable to the Fourth Amendment Effective DateLenders) and shall remain in effect, includingand no law or regulation shall be applicable in the reasonable judgment of the Agent that restrains, to prevents or imposes materially adverse conditions upon the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenttransactions contemplated hereby.
(d) Administration The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders required to be paid or reimbursed by the Borrower (including the accrued reasonable and documented fees and expenses of counsel to the Agent) that have been invoiced to the Borrower prior to the Effective Date.
(e) On the Effective Date, the following statements shall be true and the Agent shall have received originally executed copies for the account of each Lender a certificate signed by a duly authorized officer of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably requestBorrower, dated the Fourth Amendment Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date and otherwise the following, each dated such day, in form and substance reasonably satisfactory to Administration the Agent:
(i) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes (if any), and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes (if any).
(eii) Each Credit Party shall have obtained all material consents necessary A certificate of the Secretary or advisable in connection with an Assistant Secretary of the transaction contemplated by Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Fourth AmendmentAgreement and the Notes (if any) and the other documents to be delivered hereunder.
(fiii) A favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Borrower, in customary form and substance.
(iv) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance satisfactory to the Agent. NYDOCS02/1172785 27
(g) The Agent and Lenders shall have received such all documentation and other documents information requested in writing at least five Business Days prior to the Effective Date required by bank regulatory authorities under applicable “know your customer” and information regarding Credit Parties anti-money laundering rules and regulations, including the Patriot Act and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment Beneficial Ownership Regulation (if applicable).
(a) Any fees required to be paid pursuant to the conditions set forth in this Section II, all outstanding amounts under Fee Letters on or before the Tranche A Term Loans and Tranche B Term Loans Effective Date shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationhave been paid.
Appears in 1 contract
Sources: Term Loan Agreement (Autodesk Inc)
Conditions Precedent to Effectiveness. The effectiveness This Amendment shall become effective as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, “First Amendment Effective Date”) on which each of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by been satisfied:
a. the execution and delivery of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders Bank shall have received originally an executed copies copy of the favorable written opinion of Akinthis Amendment from each party hereto, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory acceptable to Administration Agent.the Bank;
(e) Each Credit Party b. the Bank shall have obtained received such other documents, agreements, instruments and other items set forth in Exhibit D hereto, in each case, executed by each of the parties thereto and in form and substance reasonably acceptable to the Bank;
c. the representations and warranties of the Released Borrower herein, and the representations and warranties of each New Borrower, each Entity Guarantor, the Individual Guarantor, and any other Obligor contained in Sections 7, 8 and 9 of this Amendment and in any other Loan Document shall be true and correct in all material consents necessary respects on and as of the First Amendment Effective Date (other than any representation and warranty that includes a materiality qualifier, which shall be 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 true and correct in all material respects as of such earlier date (other than any representation and warranty that includes a materiality qualifier, which shall be true and correct in all respects);
d. the New Borrowers shall have paid or advisable caused to be paid to the Bank an amendment fee in the aggregate amount of $100,000.00 (the “Amendment Fee”). The Amendment Fee shall be fully earned and due and payable in cash on the First Amendment Effective Date. The New Borrowers hereby agree that once paid, the Amendment Fee shall not be refundable under any circumstances and shall not be subject to reduction by way of set off or counterclaim;
e. the Bank shall have received payment of all reasonable fees and expenses of the Bank incurred in connection with this Amendment, including reasonable counsel’s fees; and
f. the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders Bank shall have received such other documents and information regarding Credit Parties and agreements, including lien searches, as are reasonably requested by the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellationBank.
Appears in 1 contract
Sources: Loan Agreement (Royalty Pharma PLC)
Conditions Precedent to Effectiveness. The effectiveness of This Second Amendment shall become effective on the amendments set forth at Section I hereof is subject to date (the satisfaction, or waiver, “Second Amendment Effective Date”) when each of the following conditions on shall have been satisfied; provided that if the following conditions are not satisfied by April 19, 2016, this Second Amendment shall not become effective and shall be of no force or before effect with respect to the date Credit Agreement:
1. The Borrower, the Administrative Agent and each other Lender shall have signed a counterpart hereof (whether the "FOURTH AMENDMENT EFFECTIVE DATE"):
(asame or different counterparts) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent delivered (including by way of facsimile, pdf or other electronic transmission) the execution and delivery of the signature pages hereof same to the Administrative Agent.
(b) Company 2. The Administrative Agent shall have delivered received a favorable customary legal opinion of ▇▇▇▇▇ Day, counsel to the Credit Parties addressed to the Administrative Agent a fully executed and delivered Fourth each of the Lenders party to the Credit Agreement on the Second Amendment Effective Date Certificate and dated the Second Amendment Effective Date covering such matters incidental to this Second Amendment and the transactions contemplated hereby as the Administrative Agent may reasonably request.
3. The Administrative Agent shall have received (A) true and complete copies of resolutions of the board of directors of the Borrower approving and authorizing the execution, delivery and performance of the Credit Agreement and the Credit Documents, in each case as modified by this Second Amendment, certified as of the Second Amendment Effective Date by an Authorized Representative and attested to by another Authorized Representative of the Borrower as being in full force and effect without modification or amendment and (B) good standing certificates for the Borrower from the jurisdiction in which the Borrower is organized.
4. All of the representations and warranties made pursuant to Part III hereof shall be deemed true and correct in all material respects on the Second Amendment Effective Date, both before and after giving effect to this Second Amendment, with the same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date).
5. Since January 2, 2016, nothing shall have occurred (and neither the Administrative Agent nor the Required Lenders shall have become aware of any facts or conditions not previously known) which the Administrative Agent or the Required Lenders shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Funding Notice Material Adverse Effect.
6. No litigation by any entity (private or governmental) shall be pending or threatened in writing with respect to the Tranche C Term Loans for all purposes hereof)Credit Agreement, any other Credit Document or any other documentation executed in connection herewith and therewith or the transactions contemplated hereby and thereby, or which the Administrative Agent shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(c) Company 7. The Borrower shall have paid all fees reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed or paid by pursuant to Section 13.01 of the Company hereunder or under any other Credit DocumentAgreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent.
8. Substantially simultaneously with the Second Amendment Effective Date, (dx) Administration Agent that certain Fifth Amendment to Amended and the Lenders shall have received originally executed copies Restated Credit Agreement in respect of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably requestExisting Revolving Credit Agreement, dated of even date herewith, and (y) the Fourth Amendment Effective Date and otherwise 2016 Term Loan Credit Agreement, dated of even date herewith, in each case, in form and substance reasonably satisfactory to Administration the Administrative Agent, shall have become effective pursuant to their respective terms.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) 9. The Administrative Agent and Lenders shall have received such other documents and documents, information or agreements regarding Credit Parties and the Credit Agreement Borrower as the Agents or Lenders may Administrative Agent shall reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness (a) This Agreement shall be effective with respect to the items addressed in the preliminary statements upon the Effective Date, and shall be effective with respect to all other matters on the Closing Date or the date of the amendments set forth at Section I hereof is subject applicable Amendment and no Lender shall be obligated to make any Advance hereunder from and after the satisfactionClosing Date, nor shall any Lender, the Collateral Custodian, the Servicer, the Account Bank or waiverthe Administrative Agent be obligated to take, fulfill or perform any other action hereunder, until, the satisfaction of the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent:
(ai) Companythis Agreement, Holdingsall other Transaction Documents and all other agreements and opinions of counsel listed on Schedule I hereto or counterparts hereof or thereof shall have been duly executed by, Requisite Lenders and delivered to, the parties hereto and thereto;
(ii) all up-front expenses and fees (including reasonable legal fees and any fees required under the Fee Letters) that are required to be paid hereunder or by the Fee Letters and are invoiced at least three Business Days prior to the Closing Date shall have been paid in full;
(iii) the representations and warranties contained in Sections 4.01, 4.02 and 4.06 are true and correct (as certified by the Borrower);
(iv) As of the Closing Date, the Borrower had received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Lenders) in connection with the transactions contemplated by this Agreement and the Tranche C Term Loan Lenders other Transaction Documents and all applicable waiting periods shall have indicated their consent expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of the Lenders could reasonably be expected to have such effect;
(v) no action, proceeding or investigation shall have been instituted, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Transaction or the consummation of the transactions contemplated hereby or thereby, or which, in the Lenders' sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby; and
(vi) the Administrative Agent shall have received all documentation and other information requested by the execution and delivery Administrative Agent acting at the direction of the signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice Majority Lenders or required by regulatory authorities with respect to the Tranche C Term Loans for all purposes hereof).
(c) Company shall have paid all fees Borrower and other amounts due the Servicer under applicable "know your customer" and payable on or prior to the Fourth Amendment Effective Dateanti-money laundering rules and regulations, including, to without limitation, the extent invoicedUSA PATRIOT Act, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies of the favorable written opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 28, 2024 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable An executed copy of this Agreement from each party hereto.
(vi) If reasonably requested by any Lender at least ten days prior to the Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the transaction contemplated by this Fourth AmendmentPATRIOT Act, in each case at least five days prior to the Effective Date.
(fvii) At least five days prior to the Effective Date, for each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
(g) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)
Conditions Precedent to Effectiveness. The effectiveness of This First Amendment shall become effective on the amendments set forth at Section I hereof is subject to date (the satisfaction, or waiver, “First Amendment Effective Date”) when each of the following conditions on shall have been satisfied; provided that if the following conditions are not satisfied by February 14, 2014, this First Amendment shall not become effective and shall be of no force or before effect with respect to the date Credit Agreement:
1. The Borrower, the Administrative Agent and each other Lender shall have signed a counterpart hereof (whether the "FOURTH AMENDMENT EFFECTIVE DATE"):
(asame or different counterparts) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent delivered (including by way of facsimile, pdf or other electronic transmission) the execution and delivery of the signature pages hereof same to the Administrative Agent.
(b) Company 2. The Administrative Agent shall have delivered received favorable customary legal opinion of ▇▇▇▇▇ Day, counsel to the Credit Parties addressed to the Administrative Agent a fully executed and delivered Fourth each of the Lenders party to the Credit Agreement on the First Amendment Effective Date Certificate and dated the First Amendment Effective Date covering such matters incidental to this First Amendment and the transactions contemplated hereby as the Administrative Agent may reasonably request.
3. The Administrative Agent shall have received (A) true and complete copies of resolutions of the board of directors of the Borrower approving and authorizing the execution, delivery and performance of the Credit Agreement and the Credit Documents, in each case as modified by this First Amendment, certified as of the First Amendment Effective Date by an Authorized Representative and attested to by another Authorized Representative of the Borrower as being in full force and effect without modification or amendment and (B) good standing certificates for the Borrower from the jurisdiction in which the Borrower is organized.
4. All of the representations and warranties made pursuant to Part III hereof shall be deemed true and correct in all material respects on the First Amendment Effective Date, both before and after giving effect to this First Amendment, with the same effect as though such representations and warranties had been made on and as of the First Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date).
5. Since December 29, 2012, nothing shall have occurred (and neither the Administrative Agent nor the Required Lenders shall have become aware of any facts or conditions not previously known) which the Administrative Agent or the Required Lenders shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Funding Notice Material Adverse Effect.
6. No litigation by any entity (private or governmental) shall be pending or threatened in writing with respect to the Tranche C Term Loans for all purposes hereof)Credit Agreement, any other Credit Document or any other documentation executed in connection herewith and therewith or the transactions contemplated hereby and thereby, or which the Administrative Agent shall determine has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
7. The Administrative Agent shall have received payment from the Borrower, for the account of each Lender that executes and delivers a counterpart signature page to this Amendment prior to 10:00 A.M., New York City time, on February 14, 2014 (c) Company the “Term Loan Consent Deadline”), a non-refundable consent fee payable in Dollars in an amount equal to 0.05% of the Term Loan Commitment of each such existing Lender in effect as of the First Amendment Effective Date and in connection with each new Lender, the rate separately agreed with such new Lender.
8. The Borrower shall have paid all fees reasonable and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced, reimbursement or other payment of all documented out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed or paid by the Company hereunder or under any other Credit Document.
(d) Administration Agent and the Lenders shall have received originally executed copies pursuant to Section 13.01 of the favorable written opinion Credit Agreement, including the reasonable and documented fees, charges and disbursements of Akin, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as counsel for the Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) 9. The Administrative Agent and Lenders shall have received such other documents and documents, information or agreements regarding Credit Parties and the Credit Agreement Borrower as the Agents or Lenders may Administrative Agent shall reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Sources: Credit Agreement (Flowers Foods Inc)
Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth at Section I hereof is subject to the satisfaction, or waiver, This Amendment shall not be effective until each of the following conditions on or before precedent has been fulfilled to the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):
(a) Company, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders shall have indicated their consent by the execution and delivery satisfaction of the signature pages hereof to the Administrative Agent.:
(b) Company a. This Amendment shall have delivered to Administrative Agent a fully been duly executed and delivered Fourth by the respective parties hereto.
b. All necessary consents and approvals to authorize this Amendment Date Certificate (shall have been obtained by the applicable Loan Parties.
c. The Administrative Agent shall have received, for the benefit of the Lenders, a fee in the aggregate amount of 0.25% of the aggregate amount of the Total Commitments, which fee shall be deemed fully earned when paid and shall not be refundable under any circumstances.
d. No Default or Event of Default shall have occurred and be continuing immediately after giving effect to be a Funding Notice with respect this Amendment.
e. After giving effect to this Amendment, the representations and warranties herein and in the Credit Agreement and the other Loan Documents shall be, (i) to the Tranche C Term Loans for extent qualified by materiality, true and correct in all purposes respects, and (ii) to the extent not qualified by materiality, true and correct in all material respects, in each case, on and as of the date hereof, as though made on and as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all respects or all material respects, as applicable, as of such earlier date).
(c) Company shall have paid all fees and other amounts due and payable on or prior to f. As of the Fourth First Amendment Effective Date, includingthere shall not have occurred since December 31, 2017, any event or condition that has had or could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
g. As of the First Amendment Effective Date, no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the extent invoicedknowledge of any Group Member, reimbursement or other payment of all out-of-pocket expenses required threatened, that could reasonably be expected to be reimbursed or paid by the Company hereunder or under any other Credit Documenthave a Material Adverse Effect.
(d) Administration h. The Administrative Agent and the Lenders shall have received originally executed copies a true and complete copy of the favorable written opinion of AkinEdgewater Acquisition Documents, Gump, Strauss, Hauer & Feld, L.L.P., special couns▇▇ ▇▇r t▇▇ ▇redit Parties, as to such matters as Administrative Agent may reasonably request, dated the Fourth Amendment Effective Date and otherwise which shall be in form and substance reasonably satisfactory to Administration the Administrative Agent.
(e) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by this Fourth Amendment.
(f) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and the Credit Agreement as the Agents or Lenders may reasonably request. Upon the effectiveness of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note to the Company for cancellation.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the amendments set forth at Section I hereof is subject to first date (the satisfaction, or waiver, of “Effective Date”) on which the following conditions on or before the date hereof (the "FOURTH AMENDMENT EFFECTIVE DATE"):precedent have been satisfied:
(a) CompanyAs of the Effective Date, Holdings, Requisite Lenders and the Tranche C Term Loan Lenders there shall have indicated their consent by the execution and delivery of the signature pages hereof to the Administrative Agentoccurred no Material Adverse Change since December 28, 2013 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company shall have delivered to Administrative Agent a fully executed and delivered Fourth Amendment Date Certificate (which shall be deemed to be a Funding Notice with respect or any of its Subsidiaries pending or, to the Tranche C Term Loans for all purposes hereof)knowledge of the Company, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect that has not been publicly disclosed prior to the date hereof or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(c) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby, if any, shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(d) As of the Effective Date, the Company shall have paid all reasonable accrued fees and other amounts due expenses of the Agent, the Syndication Agents, the Lead Arrangers and payable the Lenders (including the reasonable accrued and invoiced fees and expenses of one counsel to the Agent).
(e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(f) The Agent shall have received on or before the Effective Date the following, each dated such date, in form and substance satisfactory to the Agent:
(i) To the extent requested by a Lender at least three Business Days prior to the Fourth Amendment Effective Date, including, Revolving Credit Notes payable to the extent invoiced, reimbursement or other payment order of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Credit Documenteach Lender.
(dii) Administration Agent and the Lenders shall have received originally executed Certified copies of the favorable written opinion resolutions of Akinthe Board of Directors of the Company approving this Agreement and the Notes, Gumpand of all documents evidencing other necessary corporate action and governmental approvals, Straussif any, Hauer & Feldwith respect to this Agreement and the Notes, L.L.P.including, special couns▇▇ ▇▇r t▇▇ ▇redit Partieswithout limitation, as copies of the articles of incorporation and bylaws of the Company.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to such matters as Administrative Agent may reasonably requestsign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) Favorable opinions of one or more counsel to the Company, dated the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administration Agentthe Agent and the Lenders.
(ev) Each Credit Party shall have obtained all material consents necessary or advisable in connection with the transaction contemplated by An executed copy of this Fourth AmendmentAgreement from each party hereto.
(fg) The Agent and Lenders shall have received such other documents and information regarding Credit Parties and evidence of (i) the Credit Agreement as termination of the Agents or Lenders may reasonably request. Upon the effectiveness commitments to make extensions of this Fourth Amendment pursuant to the conditions set forth in this Section II, all outstanding amounts under the Tranche A Term Loans and Tranche B Term Loans shall be paid and satisfied in full and if the Company so requests, each Lender who has previously received a Tranche A Term Loan Note or Tranche B Term Loan Note shall deliver such Note credit to the Company for cancellationand the Borrowing Subsidiaries by the lenders party to each of the Existing Credit Agreements and (ii) payment in full of all amounts owing under each of the Existing Credit Agreements. Each of the Lenders that is a party to any of the Existing Credit Agreements hereby waives the requirement of prior notice of termination of the commitments under each Existing Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pepsico Inc)