Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Lenders and the following conditions precedent has been satisfied (the date such conditions are so satisfied herein called the “Effective Date”): (a) 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 Credit Party, 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 Agent: (i) counterparts of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower; (ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered. (b) Any fees required to be paid on or before the Effective Date shall have been paid. (c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when on the date (the “Amendment Effective Date”) on which the following conditions are satisfied or waived by the Required Lenders:
(a) The Administrative Agent (or its counsel) shall have received executed counterparts from the Borrower, the Subsidiary Loan Parties and the Lenders constituting the Required Lenders either (i) a counterpart of this Amendment signed on behalf of such party (or a consent to this Amendment) from one hundred percent (100%) of the Lenders and the following conditions precedent has been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
(a) 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 Credit Party, each dated the Effective Date (or, Amendment in the case form of certificates of governmental officials, Exhibit A hereto (a recent date before the Effective Date“Consent Form”)) and each in form and substance or (ii) written evidence satisfactory to the Administrative Agent:
Agent (iwhich may include telecopy or electronic transmission of a signed signature page of this Amendment) counterparts that such party has signed a counterpart of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were deliveredthis Amendment.
(b) Any fees required to be paid on or before the Effective Date The Administrative Agent shall have been paid.
received, to the extent invoiced at least one Business Day prior to the Amendment Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (c) Unless waived by the Administrative Agent, the Borrower shall have paid all including reasonable fees, charges and disbursements of counsel ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Amendment Effective Date.
(c) (x) The representations and warranties set forth in Section 3.2 hereof shall be true and correct as of the Amendment Effective Date and (y) the Administrative Agent to (or its counsel) shall have received a certificate of a Responsible Officer of the extent invoiced prior to or on Borrower, dated the Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through certifying compliance with the closing proceedings foregoing clause (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agentx).
(d) On or prior to the Amendment Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests at least five Business Days prior to the Amendment Effective Date, a Beneficial Ownership Regulation Certification in relation to such Loan Party.
Appears in 1 contract
Sources: Revolving Credit Agreement (Nuance Communications, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective (the “Effective Date”) when and only when when:
(a) the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Lenders Borrower, each Guarantor and the following conditions precedent has been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
(a) 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 Credit Party, 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 Agent:
(i) counterparts of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the BorrowerLenders;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent Agent, for the account of each Lender a fee in the amount equal to 0.30% times the positive remainder, if any, of (i) such Lender’s Revolving Loan Commitment Percentage of the Borrowing Base after giving effect to the extent invoiced provisions of Sections 2.1 and 2.2 of this Amendment, minus (ii) such Lender’s Revolving Loan Commitment Percentage of the Borrowing Base immediately prior to giving effect to the provisions of Sections 2.1 and 2.2 of this Amendment (or if a Lender was not party to the Original Agreement prior to the effectiveness of this Amendment, zero), which fee shall be due and payable on the date hereof;
(c) the representations and warranties of each Credit Party contained in the Financing Documents shall be true, correct and complete in all material respects (or in all respects if such representation or warranty is by its terms already qualified as to materiality) on and as of the Effective Date, plus except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date;
(d) the Administrative Agent shall have received a certificate of the secretary, assistant secretary or other Responsible Officer of Borrower certifying as of the Effective Date (i) that there have been no changes to the Organizational Documents of Borrower since the Closing Date, (ii) the resolutions of Borrower approving this Amendment, and other documents executed in connection with this Amendment and the related transactions (which certification may, if applicable, be by reference to previously adopted resolutions), and (iii) the signature and incumbency certificates of the officers of Borrower (which certification may, if applicable, be by reference to previously delivered incumbency certificates);
(e) the Administrative Agent shall have received a certificate of the secretary, assistant secretary or other Responsible Officer of each Guarantor certifying as of the Effective Date (i) that there have been no changes to the Organizational Documents of such Guarantor since the Closing Date, (ii) the resolutions of such Guarantor approving this Amendment, and other documents executed in connection with this Amendment and the related transactions (which certification may, if applicable, be by reference to previously adopted resolutions), and (iii) the signature and incumbency certificates of the officers of such Guarantor (which certification may, if applicable, be by reference to previously delivered incumbency certificates);
(f) as of the Effective Date and immediately after, no Default or Event of Default shall have occurred and be continuing; and
(g) the Administrative Agent shall have received all documents and instruments that Administrative Agent has then reasonably requested, in addition to those described in this Section 3.1 (all such additional amounts of such feesdocuments and instruments shall be reasonably satisfactory to Administrative Agent in form, charges substance and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agentdate).
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment The amendment of the Existing Credit Agreement and associated provisions set forth herein shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) as of the Lenders and first date on which the following conditions precedent has occur or have been satisfied waived in accordance with Section 9.5 of the Existing Credit Agreement (the date such conditions are so satisfied herein called the “Amendment Effective Date”):
(a) The Administrative Agent’s receipt Agent shall have received a counterpart of this Amendment Agreement, executed and delivered by a duly authorized officer of Parent, the followingBorrower, Continuing Lenders constituting the Requisite Lenders, each New Lender and the Administrative Agent.
(b) The Administrative Agent shall have received, in respect of which shall be originals or telecopies each of Parent and the Borrower, (followed promptly by originalsi) unless otherwise specified, each properly a certificate of such Credit Party executed by the secretary or assistant secretary of such Credit Party attaching (A) a Responsible Officer copy of the signing each Organizational Document of such Credit Party, each dated which shall, to the extent applicable, be certified as of the Amendment Effective Date (or, in the case of certificates of governmental officials, or a recent date before prior thereto by the appropriate Governmental Authority provided that, in lieu of the delivery requirement in this clause (A), if there has been no change to, and no action has been taken to amend, the Organizational Documents of such Credit Party since the Amendment Effective Date, the Administrative Agent shall accept a certification from an Authorized Office of such Credit Party as to such fact, (B) signature and incumbency certificates of the officers of such Credit Party, (C) resolutions of the board of directors or similar governing body of such Credit Party approving and authorizing the execution, delivery and performance of this Amendment Agreement, certified as of the Amendment Effective Date by such secretary or assistant secretary as being in full force and effect without modification or amendment, and (D) a good standing certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of organization, dated the Amendment Effective Date or a recent date prior thereto, and (ii) such other documents and certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of each of Parent and the Borrower and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived The Administrative Agent and the Arrangers shall have received payment of all fees and expenses required to be paid or reimbursed by Parent or the Borrower under or in connection with this Amendment Agreement, including those fees and expenses set forth in Section 5 hereof and in any arrangement letter or fee letter entered into by the Parent or the Borrower with any Arranger in connection with this Amendment Agreement.
(d) At the time of and immediately after giving effect to this Amendment Agreement, no Default or Event of Default shall have occurred and be continuing or would result therefrom.
(e) The representations and warranties made or deemed to be made in this Amendment Agreement shall be true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (ii) otherwise, in all material respects, in each case on and as of the Amendment Effective Date, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct, or true and correct in all material respects, as applicable, on and as of such earlier date.
(f) The Borrower shall have (i) prepaid all accrued and unpaid interest and fees in respect of the Existing Term Loans to but excluding the Amendment Effective Date and (ii) paid to the Administrative Agent, for the account of each Existing Lender, any amounts owing to such Existing Lender under Section 2.10(b) of the Existing Credit Agreement as a result of the effectiveness of this Amendment Agreement.
(g) The Administrative Agent shall have received from the Borrower a Conversion/Continuation Notice contemplating the commencement of a new Interest Period with respect to the Tranche B Term Loans commencing on the Amendment Effective Date. The Administrative Agent shall notify Parent, the Borrower, the Existing Lenders and the New Lenders of the Amendment Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Amendment Agreement shall not become effective, and the obligations of the applicable Continuing Lenders and the New Lenders to assume Tranche B Term Loans as provided for herein will automatically terminate, if each of the conditions set forth or referred to in this Section 3 has not been satisfied at or prior to 5:00 p.m., New York City time, on Tuesday, February 28, 2017 (it being understood that any such failure of this Amendment Agreement to become effective will not affect any rights or obligations of any Person under the Existing Credit Agreement). For purposes of determining compliance with the conditions specified above, each Lender party to this Amendment Agreement shall be deemed to have paid all feesconsented to, charges and disbursements approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Persons unless an officer of counsel to the Administrative Agent responsible for the transactions contemplated by the Credit Documents shall have received notice from such Person prior to the extent invoiced prior Amendment Effective Date specifying its objection thereto. The Administrative Agent hereby consents to or on the Effective Date, plus such additional amounts of such fees, charges this Amendment Agreement and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or confirms that each New Lender is acceptable to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)it.
Appears in 1 contract
Conditions to Effectiveness of Amendment. (a) This Amendment Amendment, including the amendments set forth in Section 4 and the acknowledgements, consents and agreements set forth in Section 5, shall become effective when on the date (the “Amendment No. 2 Effective Date”) on which each of the following conditions are satisfied or waived by the applicable party; provided that (x) Sections 1 and only when 2 of this Amendment shall not become operative until each of the conditions set forth in Section 8 of this Amendment have been satisfied or waived by the applicable party and (y) Section 3 of this Amendment shall not become operative until each of the conditions set forth in Section 9 of this Amendment have been satisfied or waived by the applicable party:
(i) the Administrative Agent shall have received executed counterparts of signature pages to this Amendment from the Required Lenders, Holdings, the Borrower, each other Credit Party that is party to a Credit Document, Citibank, N.A., in its capacity as Administrative Agent, Collateral Agent, Swingline Lender, Revolving Letter of Credit Issuer and Deposit Letter of Credit Issuer and JPMorgan Chase Bank, N.A., in its capacity as Revolving Letter of Credit Issuer;
(or a consent ii) payment by the Borrower to the Administrative Agent, for the account of each Lender (other than any Defaulting Lender and any Posting Lender) that has returned an executed signature page to this AmendmentAmendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on April 7, 2011 (the “Consent Deadline”) from one hundred percent (100%) of consenting to the Lenders amendments set forth in Section 4 and the following conditions precedent has been satisfied acknowledgements and consents set forth in Section 5, an amendment fee (the date such conditions are so satisfied herein called the “Effective DateAmendment Fee”):
(a) 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 Credit Party, each dated the Effective Date (or, in an amount equal in the case of certificates Term Loans, Deposit L/C Loans and Revolving Credit Commitments, 0.50% of governmental officialsthe sum of aggregate principal amount of the Term Loans, Deposit L/C Loans and the Revolving Credit Commitment of such Lender outstanding or in effect, as applicable, as of the Consent Deadline (it being understood that the Borrower shall have no liability to pay the Amendment Fee if the Amendment No. 2 Effective Date does not occur);
(iii) the Borrower shall have received from Parent repayment of $770,000,000 of the Parent Loan previously made under the Existing SG&A Note;
(iv) the Administrative Agent shall have received from Borrower a recent date before certificate of an Authorized Officer of the Borrower to the effect that representations and warranties set forth in Section 6 hereof are true and correct on and as of the Amendment No. 2 Effective Date;
(v) and each the Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts , of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a certificate on behalf board of directors, other managers or general partner of each Credit Party certifying that none (or a duly authorized committee thereof) authorizing the execution, delivery and performance of this Amendment and the performance of the resolutionsCredit Agreement and the other Credit Documents, incumbency certificatesin each case as modified by this Amendment, organizational documents and/or certificates certified as of Responsible Officers the Amendment No. 2 Effective Date by an Authorized Officer of each Credit Party as being in full force and effect without modification or amendment; and
(vi) payment by the Borrower of the reasonable costs and expenses of the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment (including the Loan Documents reasonable fees, disbursements and other charges of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP as counsel to which such Credit Party is a party have been amended or are otherwise inaccurate since they were deliveredthe Administrative Agent).
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the The Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between notify the Borrower and the Administrative Agent)Lenders of the Amendment No. 2 Effective Date promptly after the occurrence thereof.
Appears in 1 contract
Sources: Amendment No. 2 (Energy Future Intermediate Holding CO LLC)
Conditions to Effectiveness of Amendment. This Amendment shall become effective only when and only when if each of the following conditions is satisfied:
4.1 The Administrative Agent shall have received a counterpart of this Amendment duly executed and delivered by the Borrower, the Loan Guarantors, the Administrative Agent, and the Lenders.
4.2 The Lenders and the Administrative Agent shall have received executed counterparts payment of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Lenders and the following conditions precedent has been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
(a) 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 Credit Party, 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 Agent:
(i) counterparts of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered.
(b) Any all fees required to be paid on by the Borrower under the terms of the Credit Agreement or before the Effective Date any separate fee letter.
4.3 The Administrative Agent shall have received a certificate of each Loan Party executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors, members or other body authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Loan Party authorized to sign this Amendment and the other Loan Documents to which it is a party, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by laws or operating, management or partnership agreement or, in the alternative, contain an appropriate certification that there have been paid.
(c) Unless waived by no amendments to such Loan Party’s organizational documents since copies thereof were last furnished to the Administrative Agent, and (ii) a long form good standing certificate for each Loan Party from its jurisdiction of organization.
4.4 The Administrative Agent shall have received the results of recent lien searches in the jurisdictions where each of the Loan Parties is organized, and such searches shall reveal no liens on any of the assets of the Loan Parties except for liens permitted by Section 6.02 of the Credit Agreement.
4.5 The Borrower shall have delivered or caused to be delivered (a) a duly executed Patent Security Agreement, Trademark Security Agreement and Copyright Security Agreement with respect to any patent, trademark or copyright maintained by any Loan Party in which the Administrative Agent does not have a first priority perfected security interest for the benefit of the Lenders, (b) a Collateral Access Agreement signed by the owner of any warehouse of leased facility in which Collateral is located if a signed Collateral Access Agreement for such location is not currently in effect, (c) a deposit account control agreement signed by each depositary institution holding a deposit account maintained by any of the Loan Parties if a signed deposit account control agreement is not currently in effect, and (d) such other documents as the Administrative Agent may reasonably request in order to perfect (or maintain the perfection of) its first priority security interest in the Collateral for the benefit of the Lenders.
4.6 The Borrower shall have paid all fees, charges and disbursements of counsel invoices presented to the Borrower for expense reimbursements due to the Administrative Agent or any Lender pursuant to Section 9.03 of the extent invoiced prior to or on Credit Agreement in connection with the Effective Date, plus such additional amounts preparation and negotiation of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)this Amendment.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Majority Lenders and the following conditions precedent has have been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
(a) 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 Credit Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) Loan Party and each in form and substance satisfactory to the Administrative Agent and in such number of counterparts as may be requested by the Agent:: [FOURTH AMENDMENT TO EIGHTH AMENDED AND RESTATED CREDIT AGREEMENT]
(i) counterparts of the Amendment Documents executed by the applicable Credit Loan Parties sufficient in number for distribution to the Administrative Agent and the Borrower;.
(ii) a certificate on behalf of each Credit applicable Loan Party (other than Appalachia and Louisiana) certifying that none of the resolutions, incumbency certificates, organizational documents Organization Documents and/or certificates of Responsible Officers of each Credit Loan Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Loan Party is a party have been amended or are otherwise inaccurate since they were delivereddelivered and certifying resolutions authorizing this Amendment.
(iii) a certificate of each of Appalachia and Louisiana, dated the Effective Date, substantially in the form of Exhibit C to the Original Agreement, with appropriate insertions and attachments and evidencing, among other things, the power and authority of each such Person to assume the Obligations under the Credit Agreement as a borrower.
(iv) an amended and restated Guarantee Agreement, in form and substance satisfactory to the Agent, executed and delivered by the Company, the Borrower and each Subsidiary Guarantor.
(v) replacement promissory notes of the Borrower evidencing the Revolving Loans of each Lender, substantially in the form of Exhibit H to the Original Agreement, with appropriate insertions as to date and principal amount.
(vi) such other documents or certificates as the Agent shall reasonably request.
(b) Any fees required to be paid to the Agent or any Lender on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).. [FOURTH AMENDMENT TO EIGHTH AMENDED AND RESTATED CREDIT AGREEMENT]
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective when on the date (the “Amendment No. 1 Effective Date”) on which the following conditions are satisfied or waived:
(a) the Administrative Agent (or its counsel) shall have received from each of the Loan Parties, each Issuing Bank and only when the Lenders (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank, a favorable written opinion of (x) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, (y) Walkers, special Cayman Islands counsel for the Loan Parties and (z) ▇▇▇▇▇ Law LP, special Anguilla counsel for the Loan Parties, each (A) dated the Amendment No. 1 Effective Date, (B) addressed to the Administrative Agent, the Lenders and each Issuing Bank on the Amendment No. 1 Effective date and (C) in form and substance reasonably satisfactory to the Administrative Agent, covering such matters relating to the Loan Documents as the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Lenders and the following conditions precedent has been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):reasonably request.
(ac) The Administrative Agent’s receipt of the following, each of which Agent shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit Party, each dated the Effective Date (orhave received, 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 AgentLoan Party:
(i) counterparts a copy of the Amendment Documents executed certificate or articles of incorporation, memorandum of association, certificate of limited partnership, certificate of registration of exempted limited partnership, certificate of formation, exempted limited partnership agreement, or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (1) certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (2) if such certification is not available in the applicable Credit Parties sufficient jurisdiction, otherwise certified by the Secretary or Assistant Secretary or similar officer of such Loan Party or (in number for distribution to the Administrative Agent and the Borrower;case of any Loan Party that is a limited partnership) its general partner, as applicable,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official of the jurisdiction of its organization),
(iii) a certificate of the Secretary or Assistant Secretary or similar officer or a director of such Loan Party or (in the case of any Loan Party that is a limited partnership) of its general partner, as applicable, dated the Amendment No. 1 Effective Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or memorandum and articles of association, partnership agreement, exempted limited partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Amendment No. 1 Effective Date and at all times since a date prior to the date of the resolutions described in (B) below,
(B) that attached thereto is a true and complete copy of resolutions (or equivalent documentation duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its general partner or managing member) authorizing the execution, delivery and performance of this Amendment and the Loan Documents dated as of the Amendment No. 1 Effective Date to which such person is a party and, in the case of each Borrower, the borrowings thereunder, and that such resolutions (or equivalent documentation) have not been modified, rescinded or amended and are in full force and effect on the Amendment No. 1 Effective Date,
(C) that the certificate or articles of incorporation, memorandum of association, certificate of limited partnership, certificate of registration of exempted limited partnership, articles of incorporation, certificate of formation, exempted limited partnership agreement or other equivalent organization documents of such Loan Party has not been amended since the date of the last amendment thereto as disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer of the Loan Party or (in the case of any Loan Party that is a limited partnership) of its general partner, as applicable, executing this Amendment and any Loan Document or any other document delivered in connection herewith on behalf of each Credit such Loan Party, and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party certifying that none or, to the knowledge of such person, threatening the resolutions, incumbency certificates, organizational documents and/or certificates existence of Responsible Officers of each Credit Party as the such Loan Party.
(d) The Administrative Agent has previously required evidencing shall have received all fees payable thereto or to any Lender or Joint Lead Arranger on or prior to the identityAmendment No. 1 Effective Date and, authority to the extent invoiced, all other amounts due and capacity of each Responsible Officer thereof authorized payable pursuant to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered.
(b) Any fees required to be paid on or before prior to the Amendment No. 1 Effective Date shall have been paid.
Date, including, to the extent invoiced at least three Business Days prior to the Amendment No. 1 Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (c) Unless waived by the Administrative Agent, the Borrower shall have paid all including reasonable fees, charges and disbursements of counsel ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(e) On and as of the Amendment No. 1 Effective Date, both immediately before and immediately after giving effect to the effectiveness of this Amendment, the representations and warranties of the Borrower and each other Loan Party set forth in Section 2 hereof shall be true and correct in all material respects (it being understood that 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 date). For purposes of determining compliance with the conditions specified in this Section 3, each Lender 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 the Lenders 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 Amendment No. 1 Effective Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent to such Lender’s ratable portion of the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)initial Borrowing.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall ---------------------------------------- become effective when (the actual date of such effectiveness, the "Eighth Amendment Effective Date") as of the date first above written when:
(a) This Amendment shall have been duly executed and only when delivered by each of the Administrative parties hereto.
(b) The Acknowledgment and Consent dated as of the date hereof by the Company and Pameco Investment Company, Inc. shall have been duly executed and delivered by each of the parties thereto.
(c) The Agent shall have received executed counterparts a certificate of the Secretary or an Assistant Secretary of each Loan Party, dated as of the Eighth Amendment Effective Date, and certifying (i) as to the due authorization, execution, delivery and performance of this Amendment, the Acknowledgment and Consent attached hereto and related matters, and (ii) as to the incumbency and specimen signature of such Loan Party's officers executing this Amendment (and all other documents required or a consent necessary to this Amendment) from one hundred percent (100%) be delivered hereunder or in connection herewith. Such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the Lenders and the following conditions precedent has been satisfied (the date of such conditions are so satisfied herein called the “Effective Date”):certificate.
(ad) The Administrative Agent’s receipt Agent shall have received true and complete copies of the followingcertificate of incorporation and by-laws of each Loan Party, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer certified as of the signing Credit Party, each dated the Eighth Amendment Effective Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of such Loan Party.
(ore) The Agent shall have received an opinion of the Company's counsel with respect to corporate existence, in the case of certificates of governmental officialsdue authorization, a recent date before the Effective Date) execution and each delivery, enforceability and no conflict with law in form and substance satisfactory to the Administrative Agent:.
(f) The Agent, for the benefit of the Tranche C Term Loan Lenders, shall have received an upfront fee of $100,000.
(g) The Agent shall have received copies, attached to a certificate from the Secretary or Assistant Secretary of the Company, certifying as true and correct (i) the loan agreement entered into between Quilvest and the Company (the "Quilvest Loan Agreement") which shall contain provisions which grant to Quilvest a security interest in the Collateral (other than the Seller Collateral (as defined in the Receivables Purchase Agreement)) and otherwise be in form and substance acceptable to the Agent and Lenders, (ii) any UCC financing statements to be executed by the Company in favor of Quilvest, (iii) the Subordination Agreement and (iv) any and all other documents or certificates executed in connection with the Quilvest Loan Agreement, together with evidence that the loan made by Quilvest pursuant to the Quilvest Loan Agreement in an amount not less than $7,500,000 has funded (the "Quilvest Loan").
(i) counterparts The Agent shall have received, for the account of each Tranche C Term Loan Lender, the Tranche C Term Loan Notes in the form of Exhibit B to this --------- Amendment, executed and delivered by a duly authorized officer of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were deliveredCompany.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Sources: Credit Agreement (Pameco Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) as of the Lenders and the following conditions precedent has been satisfied date (the date such conditions are so satisfied herein called the “Effective Date”):) on which the following conditions are satisfied:
(a) The Administrative Agent’s receipt Agent shall have received counterparts of this Amendment duly executed and delivered by the Borrower, each Subsidiary Guarantor, the Issuing Bank and each Lender.
(b) The Administrative Agent shall have received reimbursement for all of its reasonable out-of-pocket costs and expenses in accordance with Section 2.4 hereto.
(c) The Administrative Agent shall have received, for its account and on account of each Lender, all fees in connection with this Amendment in accordance with any fee letter or commitment letter, between the Borrower and ING or the Borrower and any Lender.
(d) The Borrower shall have paid to the Administrative Agent and the Lenders all accrued but unpaid interest as of the followingdate hereof, each of which calculated at the rate set forth in the Credit Agreement (for clarity, without giving effect to the Amendment).
(e) The Administrative Agent shall be originals or telecopies have received a favorable written opinion (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer addressed to the Administrative Agent and the Lenders and dated as of the signing Credit Partydate hereof) of ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Obligors, in form and substance reasonably acceptable to the Administrative Agent and covering this Amendment and any other matter as the Administrative Agent may reasonably request (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(f) The Administrative Agent shall have received: (i) a certificate, from the secretary of each Obligor, that there has been no change to the organizational documents of each Obligor delivered as of February 22, 2011, (ii) signature and incumbency certificates of the officers of such Person executing this Amendment, (iii) resolutions of the board of directors or similar governing body of each Obligor approving and authorizing the execution, delivery and performance of this Amendment, (iv) a good standing certificate from the applicable Governmental Authority of each Obligor's jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before prior to the Effective Datedate hereof, and (v) such other documents and each certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Obligors, the authorization of this Amendment and any other legal matters relating to the Obligors, all in form and substance satisfactory to the Administrative Agent:
(i) counterparts of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were deliveredits counsel.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Required Lenders and the following conditions precedent has been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
); provided, however, that the provisions in Section 2.3 shall only become effective when the Administrative Agent shall have received executed counterparts of this Amendment from one hundred percent (a100%) of the Lenders: 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 Credit Party, 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 Agent:
(i) counterparts of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent Agent, Required Lenders and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered.;
(biii) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges such documents and disbursements of counsel to certifications as the Administrative Agent may reasonably require to the extent invoiced prior to evidence that each Credit Party is duly organized or on the Effective Dateformed, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges that each Credit Party is validly existing and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)in good standing.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of the Amendment shall become effective when No. 3 Incremental Commitments and only when FILO Commitments and the Administrative Agent shall have received executed counterparts of this Amendment amendments set forth in Section 2 above are subject to satisfaction (or a consent to this Amendment) from one hundred percent (100%waiver by the Amendment No. 3 Lead Arrangers) of the Lenders and the following conditions precedent has been satisfied (the date of such conditions are so satisfied herein called satisfaction being the “Amendment No. 3 Effective Date”):
(a) The Administrative Agent’s receipt Agent shall have received counterparts of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly this Agreement executed by a Responsible Officer of each Loan Party and a duly authorized officer of each Incremental Lender, the signing Credit PartyRevolving Lenders which constitute the Super Majority Lenders (immediately prior to giving effect to the FILO Commitments), the Assignor Lenders, each dated Issuing Bank and the Swing Line Lender.
(b) All fees and expenses required to be paid hereunder on the Amendment No. 3 Effective Date and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two Business Days before the Amendment No. 3 Effective Date (orexcept as otherwise reasonably agreed to by the Borrower) shall have been paid in full, in it being agreed that such fees and expenses may be paid with the case proceeds of certificates the funding of governmental officialsone or more of the Facilities.
(c) The Administrative Agent shall have received a certificate from a Responsible Officer of each Loan Party dated the Amendment No. 3 Effective Date, certifying as to the (A) Organization Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date before by such Governmental Authority), (B) certificates of good standing, or its equivalent, from the Effective Date) and each in form and substance satisfactory to the Administrative Agent:
(i) counterparts secretary of state or other applicable office of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a certificate on behalf jurisdiction of organization or formation of each Credit Loan Party certifying that none if applicable in the relevant jurisdiction, (C) resolutions or other applicable action of the resolutions, each Loan Party and (D) an incumbency certificates, organizational documents certificate and/or certificates other certificate of Responsible Officers of each Credit Party as the Administrative Agent has previously required Loan Party, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Credit Party it is a party have been amended or are otherwise inaccurate since they were deliveredon the Amendment No. 3 Effective Date.
(bd) Any fees required to be paid on or before the Effective Date The Administrative Agent shall have been paidreceived an opinion from the following special counsel to the Loan Parties (or certain of the Loan Parties): (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, with respect to matters of New York and certain aspects of Delaware law and (B) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, with respect to matters of the provinces of British Columbia, Québec and Ontario and the federal laws of Canada applicable therein.
(ce) Unless waived by The Administrative Agent shall have received a certificate from the Administrative Agent, chief financial officer or other officer with equivalent duties of the Borrower as to the Solvency (after giving effect to the Amendment No. 3 Transactions) of the Borrower.
(f) The Administrative Agent shall have paid all fees, charges and disbursements received a Committed Loan Notice in accordance with the requirements of counsel the Amended Credit Agreement with respect to the Administrative Agent Borrowing on the Amendment No. 3 Effective Date.
(g) The Revolving Lenders shall have received at least three Business Days prior to the Amendment No. 3 Effective Date (i) all documentation and other information about the Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent invoiced the Borrower or Co-Borrower qualifies as a “legal entity customer” a Beneficial Ownership Certification, that in each case has been requested in writing at least ten Business Days prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).Amendment No. 3
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts The effectiveness of this Amendment (or a consent is subject to this Amendment) from one hundred percent (100%) the satisfaction of the Lenders and following conditions:
2.1 The Agent’s receipt of the following conditions precedent has been satisfied (executed documents, each in form and substance reasonably satisfactory to the date such conditions are so satisfied herein called the “Effective Date”):Agent:
(a) The Administrative Agent’s receipt of this Amendment, duly executed by the followingAgent, the Lenders, the Issuing Bank and the Borrowers;
(b) The Notes, duly executed by the Borrowers, as requested by the Lenders in connection with this Amendment;
(c) A supplement to Grant of Security Interest in United States Trademarks, duly executed by the Borrower Representative and the Collateral Agent;
(d) The Post-Closing Letter, duly executed by the Borrowers and the Agent; and
(e) A certificate executed by a Responsible Officer of each Loan Party certifying that attached thereto is a true and complete copy of which : (i) the charter or other similar organizational document and each amendment thereto on file, certified by the Secretary of State of the jurisdiction, (ii) bylaws/operating agreement, as applicable, and all amendments thereto, (iii) a true and complete copy of the resolutions, duly adopted by the Board of Directors of such Loan Party, authorizing the execution, delivery and performance of this Amendment or any other document delivered in connection herewith, (iv) incumbency and specimen signatures of each Responsible Officer executing the Loan Documents, and (v) certificates of good standing of each Loan Party from the Secretary of State of such Loan Party’s jurisdiction of organization.
2.2 The Agent shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedhave received a customary legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, each properly special counsel to the Loan Parties.
2.3 The Agent shall have received a Borrowing Base Certificate dated as of the date hereof executed by a Responsible Officer of the signing Credit Party, 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 Agent:Borrower Representative.
(i) counterparts 2.4 As of the Amendment Documents executed by date hereof, after giving effect to all Borrowings made on the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none date hereof, Excess Availability shall not be less than 30% of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer Line Cap.
2.5 The Borrowers shall have paid all fees in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were deliveredFee Letter.
(b) Any fees required to be paid on or before the Effective Date 2.6 The Agent shall have been paidreceived all documentation and other information about the Borrowers and the Guarantors as required by regulatory authorities under applicable “know your customer”, Anti-Corruption Laws and Anti-Money Laundering Laws and regulations, including without limitation the USA PATRIOT Act.
(c) Unless waived by the Administrative Agent, the Borrower 2.7 The representations and warranties set forth in Section 3 of this Amendment shall have paid be true and correct in all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)material respects.
Appears in 1 contract
Sources: Loan Agreement (Ulta Beauty, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts Restatement --------------------------------------------------------- of Original Agreement. ---------------------- The effectiveness of this Amendment (or a consent Agreement amending and restating the Original Agreement shall be subject to this Amendment) from one hundred percent (100%) the receipt by the Administrator of each of the Lenders and the following conditions precedent has been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):items:
(a) The Administrative Agent’s receipt certificates of the following, Secretary or Assistant Secretary of 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 Credit PartySellers, each dated the Effective Date date of this Agreement, certifying (ori) the names and true signatures of the incumbent officers of such Person authorized to sign this Agreement and the other documents to be delivered by it hereunder, (ii) that the copy of the certificate of incorporation of such Person attached thereto is a complete and correct copy and that such certificate of incorporation has not been amended, modified or supplemented and is in full force and effect, (iii) that the copy of the bylaws of such Person attached thereto is a complete and correct copy and that such by-laws have not been amended, modified or supplemented and are in full force and effect, and (iv) the resolutions of such Person's board of directors approving and authorizing the execution, delivery and performance by such Person of this Agreement and the documents related thereto (including, in the case of certificates FLI, the Performance Guaranty);
(b) a good standing certificate for JLA issued by the Secretary of governmental officialsState of Delaware;
(c) acknowledgment copies of proper financing statements, dated a recent date before reasonably near to the Effective Datedate hereof, describing the Assets and naming JLA as debtor, the Buyer as secured party and the Administrator as assignee, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrator, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the Administrator's interests in all Assets;
(d) acknowledgment copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Assets previously granted by JLA;
(e) certified copies of requests for information or copies (or a similar search report certified by a party acceptable to the Administrator), dated a date reasonably near to the date hereof, listing all effective financing statements which name JLA (under its present name and any previous name) as debtor and which are filed in the jurisdictions in which the financing statements referred to in clause above were filed, together with copies of such financing statements (none of which, other than the financing statements referred to above, shall cover any Assets or Contracts);
(f) opinions of special counsel to JLA relating to the effect that:
(1) JLA is a corporation organized, existing and in good standing under the laws of its jurisdiction of organization, with corporate power and authority to own its properties and conduct its business as currently conducted; and JLA is qualified to do business as a foreign corporation in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(2) JLA has or had at all relevant times full power, authority and legal right to exercise, deliver and perform its obligations under the Transaction Documents; and has or had at all relevant times full power, authority and legal right to acquire, own and transfer the Assets and the other property transferred by it to the Buyer pursuant to this Agreement;
(3) Each of the Transaction Documents to which JLA is a party has been duly authorized, executed and delivered by JLA and is a valid and binding agreement, enforceable against JLA in accordance with its respective terms, except to the extent that enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and each (C) the qualification that certain remedial provisions of the Agreement may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of the Agreement, and the Agreement, together with applicable law, contains adequate remedial provisions for the practical realization of the benefits of the security created thereby;
(4) The grant of the security interest in the Assets by JLA to the Buyer pursuant to this Agreement, the compliance by JLA with all of the provisions of, and the consummation of the transactions contemplated in, the Transaction Documents will not (A) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which JLA is a party or by which JLA is bound or to which any of the property or assets of JLA is subject, (B) result in any violation of the provisions of any order known to such counsel of any court or governmental agency or body having jurisdiction over JLA or any of its properties or (C) result in any violation of the provisions of the charter or the by-laws of JLA or any statute or any rule or regulation of any governmental agency or body having jurisdiction over JLA or any of its properties;
(5) No authorization, approval, consent or order of, or filing with, any court or governmental authority or agency is required by JLA in connection with the consummation of the transactions contemplated in the Transaction Documents, except such as have been obtained;
(6) To the best of such counsel's knowledge and information, there are no legal or governmental proceedings pending or threatened (A) asserting the invalidity of any Transaction Document, (B) seeking to prevent the consummation by JLA of any of the transactions contemplated by any Transaction Document or (C) which might materially and adversely affect the performance by JLA of its obligations under any Transaction Document;
(7) The provisions of the Purchase Agreement are effective to create a valid security interest in the Assets in favor of the Buyer and such security interest is perfected and prior to all other creditors of and purchasers from JLA; and
(8) Such other matters as the Administrator may reasonably request, including without limitation, the "true sale" of the Assets from JLA to the Buyer and the "non-consolidation" of the Buyer with JLA;
(g) an executed copy of the Performance Guaranty, in form and substance satisfactory to the Administrative Agent:Administrator;
(h) an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to FLI, relating to the due authorization, execution and enforceability of the Performance Guaranty;.
(i) counterparts an executed copy of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution first amendment to the Administrative Agent Receivables Purchase Agreement, in form and substance satisfactory to the BorrowerAdministrator, together with all opinions and documents required to be delivered in connection therewith;
(iij) a certificate on behalf written confirmation from both ▇▇▇▇▇'▇ and S&P that the effectiveness of each Credit Party certifying that none this Agreement and the first amendment to the Receivables Purchase Agreement will not cause either such rating agency to reduce its rating of the resolutionsCommercial Paper Notes below A-1, incumbency certificatesin the case of S&P and P-1, organizational in the case of ▇▇▇▇▇'▇;
(k) such other approvals, opinions or documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were deliveredAdministrator may reasonably require.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when upon the Administrative Agent shall have received executed counterparts satisfaction of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Lenders and the following conditions precedent has been satisfied (the date such conditions are so satisfied herein called the “Amendment No. 1 Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, or telecopies (electronic copies or facsimiles followed promptly by originals) originals (unless otherwise specified), each properly executed by a Responsible Officer of the signing Credit PartyLoan Party (as applicable), 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 reasonably satisfactory to the Administrative AgentAgent and its legal counsel:
(i) executed counterparts of (A) this Amendment, (B) the Company Joinder Agreement, (C) a Subsidiary Guaranty Supplement dated as of the Amendment Documents executed by No. 1 Effective Date substantially in the applicable form attached as Annex B hereto from certain of the Certegy Restricted Companies (other than the Company) such that the Company and its Restricted Subsidiaries shall be in compliance with Section 6.12 of the Credit Parties sufficient in number for distribution Agreement and (D) Amendment No. 1 to the Administrative Agent and Security Agreement dated as of the Borrower;Amendment No. 1 Effective Date, which sets forth the provisions set forth in Section 6 hereof.
(ii) a certificate on behalf such certificates of each Credit Party certifying that none of the resolutionsresolutions or other action, incumbency certificates, organizational documents certificates and/or other certificates of Responsible Officers of each Credit Loan Party as the Administrative Agent has previously required may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Credit Loan Party is a party have been amended party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Certegy Restricted Company is duly organized or are otherwise inaccurate since they were deliveredformed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(iv) opinions of counsel to the Loan Parties, addressed to each Agent and each Lender and in form and substance and with respect to such matters as shall be reasonably satisfactory to the Administrative Agent;
(v) a certificate signed by a Responsible Officer of the Borrowers certifying as to the satisfaction of the conditions set forth in Section 7(e) and (f) of this Amendment;
(vi) a certificate attesting to the Solvency of the Loan Parties and the Restricted Subsidiaries (taken as a whole) after giving effect to the Certegy Merger, the Certegy Merger Dividend, this Amendment and each of the other transactions contemplated to occur on the Amendment No. 1 Effective Date from the chief financial officer of the Company; and
(vii) certified copies of the Certegy Merger Agreement and all other material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request.
(b) Any The Borrowers are in compliance with the fee letter executed in connection with this Amendment and all fees and expenses required to be paid on or before the Amendment No. 1 Effective Date shall have been paidpaid in full in cash.
(c) Unless The Certegy Merger shall simultaneously be consummated in accordance with the terms of the Certegy Merger Agreement (which shall not have been changed or any condition therein waived by if such change or waiver would be adverse to the Administrative Agentinterests of the Lenders without the prior written consent of the Arrangers).
(d) The Arrangers and the Lenders shall have received the pro forma unaudited consolidated combined financial statements of the Company and its Subsidiaries (including without limitation Solutions, Tax and their Subsidiaries) for the fiscal year ended December 31, 2004 and the pro forma unaudited consolidated combined financial statements of the Company and its Subsidiaries for the two fiscal quarters ending June 30, 2005, each giving pro forma effect to the Certegy Merger, the Borrower Certegy Merger Dividend, this Amendment, and each of the other transactions contemplated hereby to occur on the Amendment No. 1 Effective Date as if they had occurred on January 1, 2004 or January 1, 2005, as the case may be.
(e) The representations and warranties of Holdings, the Tax Restricted Companies and the Solutions Restricted Companies contained in Section 7 of this Amendment, in Article 5 of the Credit Agreement and in the other Loan Documents shall have paid be true and correct in all feesmaterial respects on and as of the Amendment No. 1 Effective Date, charges and disbursements of counsel to the Administrative Agent except to the extent invoiced prior that such representations and warranties specifically refer to or on the Effective Datean earlier date, plus such additional amounts in which case they shall be true and correct in all material respects as of such fees, charges earlier date.
(f) No Event of Default shall exist with respect to Holdings and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Fidelity National Information Services, Inc.)
Conditions to Effectiveness of Amendment. This First Amendment shall become effective when and only when on the Administrative Agent shall have received executed counterparts First Amendment Effective Date subject to the satisfaction of this Amendment (or a consent to this Amendment) from one hundred percent (100%) each of the Lenders and the following conditions precedent has been satisfied (or the date such conditions are so satisfied herein called waiver thereof by the “Effective Date”):Administrative Agent:
(a) The Administrative Agent shall have received counterparts of this First Amendment, duly executed and delivered by Holdings, the Borrower, the Required First Lien Lenders and the Administrative Agent’s receipt .
(b) The Administrative Agent shall have received such customary evidence of authority and officers certificates as the Administrative Agent may reasonably request relating to (i) the organization, existence and good standing of the following, each Borrower in its jurisdiction of organization and (ii) the incumbency of the officers of the Borrower executing the Loan Documents to which it is a party.
(c) The Administrative Agent shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed have received from the Borrower a certificate signed by a Responsible Officer and the secretary of the signing Credit PartyBorrower, each dated together with, and certifying as to the accuracy and completeness of, copies of (i) the certificate or articles of incorporation of the Borrower and (ii) the by-laws of the Borrower.
(d) The Administrative Agent shall have received a true and complete copy of the resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Amendment and any other Loan Documents to be executed on or about the First Amendment Effective Date Date.
(ore) The Administrative Agent shall have received the Acknowledgement and Confirmation, substantially in the case form of certificates Annex I hereto, duly executed and delivered by each of governmental officialsthe Loan Parties.
(f) The Borrower shall have contemporaneously received gross cash proceeds of no less than $700,000,000 from the issuance of First and a Half Lien Refinancing Notes.
(g) The Administrative Agent shall have received, on behalf of itself and the Lenders, a recent date before favorable written opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Effective Date) and each Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent:.
(ih) counterparts of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution The Administrative Agent shall have received all fees payable thereto on or prior to the Administrative Agent First Amendment Effective Date and, to the extent invoiced, all other amounts due and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized payable pursuant to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered.
(b) Any fees required to be paid on or before prior to the First Amendment Effective Date shall have been paid.
Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (c) Unless waived by the Administrative Agent, the Borrower shall have paid all including reasonable fees, charges and disbursements of counsel ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties under any Loan Document.
(i) No Default or Event of Default shall have occurred and be continuing under the Credit Agreement after giving effect to the First Amendment.
(j) The Administrative Agent shall have received, for distribution to each Extending First Lien Lender which has delivered an executed counterpart of this First Amendment to the Administrative Agent to the extent invoiced on or prior to or 5:00 p.m., New York time, on Tuesday, January 25, 2011, an amendment fee equal to .10% of such Lender’s outstanding Extended Term Loans, Extended Revolving Facility Commitments and Credit-Linked Deposits with respect to such Lender’s Extended Synthetic L/C Commitments on the First Amendment Effective Date (in each case after giving effect to any Incremental Assumption Agreement being executed and delivered and any prepayments in connection therewith to be made, in each case, as of, or promptly following, the First Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Sources: Credit Agreement (Realogy Corp)
Conditions to Effectiveness of Amendment. This Section 3 of this Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) as of the Lenders and date (the “Second Amendment Effective Date”) on which the following conditions precedent has have been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):or waived:
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received (i) a duly executed and completed counterpart hereof that bears the signature of the followingBorrower and each other Loan Party, (ii) a duly executed and completed counterpart hereof that bears the signature of the Administrative Agent and (iii) a duly executed and completed counterpart hereof that bears the signature of each of which the Lenders party hereto (comprising the Required Lenders) and each Incremental Revolving Lender;
(b) The Administrative Agent shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit Party, each dated the Effective Date (or, have received an Acknowledgment and Confirmation in the case form of certificates Annex I hereto from an authorized officer of governmental officials, a recent date before each Loan Party;
(c) The Administrative Agent shall have received (i) reimbursement of reasonable and documented out of pocket expenses (to the extent invoiced no later than three Business Days prior to the Second Amendment Effective Date) in connection with this Amendment and the other transactions contemplated hereby in accordance with Section 9.03 of the Credit Agreement, (ii) on behalf of itself, BMO Capital Markets Corp., as lead arranger, and each Lender consenting to this Amendment, the fees owed to it, BMO Capital Markets Corp. and/or such Lender pursuant to that certain mandate letter, dated as of March 31, 2020, between the Borrower and BMO Capital Markets Corp. and (iii) on behalf of each Lender, all accrued interest on outstanding Loans on the Second Amendment Effective Date and, if such Lender is a Revolving Lender, all commitment fees and participation fees payable under Section 2.12 of the Credit Agreement, whether or not any such amounts are then due and payable;
(d) The Administrative Agent shall have received a certificate of each Loan Party, dated as of the Second Amendment Effective Date, in form and substance reasonably acceptable to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching a copy of (i) each Organizational Document of each Loan Party, certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing this Amendment, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the Loan Documents to which it is a party, in each case, certified as of the Second Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, as applicable;
(e) The Administrative Agent shall have received a certificate of the chief financial officer or treasurer (or other comparable officer) of Holdings certifying the solvency, after giving effect to this Amendment, of Holdings and its Subsidiaries on a consolidated basis in substantially the form of Exhibit E to the Amended Credit Agreement;
(f) The Administrative Agent shall have received the executed legal opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Second Amendment Effective Date) of (i) ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, and (ii) ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, Georgia counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent:;
(g) The Administrative Agent shall have received at least two (2) Business Days prior to the Second Amendment Effective Date all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least five (5) Business Days prior to the Second Amendment Effective Date by the Administrative Agent required by regulatory authorities under applicable Anti-Money Laundering Laws, including the USA PATRIOT Act and other “know your customer” rules and regulations; and
(i) counterparts of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution Section 2.20(a)(A) shall be satisfied with respect to the Administrative Agent and the Borrower;
Incremental Revolving Commitment, (ii) the Borrower shall be in compliance on a certificate Pro Forma Basis (both before and after giving effect to the Incremental Revolving Commitment and any actual drawings thereunder on behalf of each Credit Party certifying that none the Second Amendment Effective Date) with the Financial Performance Covenant as of the resolutions, incumbency certificates, organizational documents and/or certificates last day of Responsible Officers the most recently ended Test Period (with any proceeds of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority Incremental Revolving Commitment and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered.
(b) Any fees required any Cure Amounts to be paid on or before excluded for purposes of the Effective Date shall have been paid.
cash component of the Total Net Leverage Ratio) and (ciii) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements delivered a certificate of counsel a Financial Officer to the Administrative Agent to the extent invoiced prior to or on the Effective Dateeffect set forth in clauses (i) and (ii) above, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings together with reasonably detailed calculations demonstrating compliance with clause (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)ii) above.
Appears in 1 contract
Sources: Credit Agreement (Blue Bird Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) as of the Lenders and date first set forth) above on the following conditions precedent has been satisfied date (the date such conditions are so satisfied herein called the “"Effective Date”):") upon:
(a) The the Administrative Agent having received counterparts hereof, duly executed and delivered by each Borrower, the Documentation Agent, the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies Subsidiary Guarantor and the Majority Lenders;
(followed promptly by originalsb) unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit Party, 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 Company having paid to the Administrative Agent:Agent the Amendment Fee specified in subsection 5.2 of this Amendment;
(ic) the Documentation Agent having received counterparts of the Amendment Documents Amended and Restated Collateral Agreement, duly executed and delivered by the applicable Credit Parties sufficient Company and each Subsidiary Guarantor, in number for distribution a form reasonably satisfactory to the Administrative Agent and the BorrowerCompany;
(iid) the Documentation Agent having received the results of a certificate on behalf of recent lien search in each Credit Party certifying that none of the resolutionsjurisdictions where Collateral of the Company or its Subsidiary Guarantors, incumbency certificateswhich are Domestic Subsidiaries, organizational documents and/or certificates is located, and such search having revealed no liens on any of Responsible Officers the Collateral of each the Company or such Subsidiary Guarantors except for liens permitted by subsection 14.3 of the Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended Agreement or are otherwise inaccurate since they were delivered.
(b) Any fees required to be paid discharged on or before prior to the Effective Date shall have been paid.pursuant to documentation satisfactory to the Documentation Agent; and
(ce) Unless waived each document (including any Uniform Commercial Code financing statement) required by the Administrative Security Documents or under law or reasonably requested by the Documentation Agent to be filed, registered or recorded in order to create in favor of the Documentation Agent, for the Borrower shall have paid all feesbenefit of the Lenders, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or a perfected Lien on the Effective DateCollateral described therein, plus such additional amounts prior and superior in right to any other Person (other than with respect to Liens expressly permitted by subsection 14.3 of such feesthe Credit Agreement) shall be in proper form for filing, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred registration or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)recordation.
Appears in 1 contract
Sources: Credit Agreement (Hexcel Corp /De/)
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when on the Administrative Agent shall have received executed counterparts of this date (the “Amendment (or a consent to this AmendmentNo. 2 Effective Date”) from one hundred percent (100%) of the Lenders and on which the following conditions precedent has been are satisfied (the date such conditions are so satisfied herein called the “Effective Date”):or waived:
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from (i) Lenders constituting the Required Lenders and (ii) each Loan Party a duly executed counterpart 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 Credit Party, each dated the Effective Date (or, in the case of certificates of governmental officialsthe Required Lenders, a recent date before the Effective Dateconsent to) this Amendment signed on behalf of such party (which may include facsimile or other electronic transmission of a signed signature page of this Amendment).
(b) The Borrower shall have paid all reasonable fees, expenses and each in form and substance satisfactory to disbursements of C▇▇▇▇▇, ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, as counsel for the Administrative Agent, incurred in connection with the preparation, negotiation and execution of this Amendment to the extent invoiced on or prior to the date hereof.
(i) On and as of the Amendment No. 2 Effective Date, both immediately before and immediately after giving effect to this Amendment, the representations and warranties of the Borrower and each other Loan Party set forth in Section 2 hereof shall be true and correct in all material respects and (ii) the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying as to the matters set forth in Section 2 hereof.
(d) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Amendment No. 2 Effective Date and certifying:
(i) counterparts that attached thereto is a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (1) if available from an official in such jurisdiction, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) that attached thereto is a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Amendment No. 2 Effective Date and at all times since a date prior to the date of the resolutions de-scribed in clause (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Amendment Documents executed by No. 2 Effective Date to which such person is a party and, in the applicable Credit Parties sufficient case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in number full force and effect on the Amendment No. 2 Effective Date,
(v) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(vi) as to the absence of any pending proceeding for distribution the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party; provided that, in lieu of delivering the foregoing attachments, each Loan Party may certify that any such attachment that was provided to the Administrative Agent or certified to on the Amendment No. 1 Effective Date has not been in any way modified, rescinded, revoked or amended in whole or in part, in any respect, and is in full force and effect on the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivereddate hereof.
(be) Any fees required to be paid on or before the Effective Date The Lenders shall have been paid.
(c) Unless waived received a solvency certificate substantially in the form of Exhibit C to the Credit Agreement and signed by the Administrative Agent, a Financial Officer of the Borrower shall have paid all fees, charges and disbursements confirming the solvency of counsel to the Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and its Subsidiaries on a consolidated basis, in each case, after giving effect to this Amendment on the Administrative Agent).Amendment No. 2
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Lenders and the following conditions precedent has been satisfied (on the date (such conditions are so satisfied herein called date, if any, the “Fourth Amendment Effective Date”):) on which each of the conditions set forth below has been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received duly executed counterparts of this Amendment from the Borrower, the Guarantor Subsidiaries and the Consenting Lenders constituting the Required Lenders.
(b) The Administrative Agent shall have received each 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 Credit Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each following in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts a certificate of an officer of each Credit Party certifying that attached thereto is (A) a true, correct and complete copy of resolutions duly adopted by the board of directors (or other governing body) of such Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment, (B) an incumbency of the officers or authorized representatives of such Credit Party executing this Amendment and the other Credit Documents executed by and (C) a good standing certificate form the applicable Governmental Authority of the jurisdiction of incorporation, organization or formation of such Credit Parties sufficient in number for distribution Party; and
(ii) opinions of counsel to the Credit Agreement addressed to the Administrative Agent and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized Lenders with respect to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered.
(b) Any fees required to be paid on or before the Effective Date shall have been paidthis Amendment.
(c) Unless waived by Other than the Administrative AgentSpecified Events of Default, the no Default or Event of Default shall exist on such Fourth Amendment Effective Date immediately prior to or after giving effect to this Amendment.
(d) On or after March 30, 2023, Borrower shall have paid repaid Twenty Million Dollars ($20,000,000) in principal amount of Revolving Loans (such repayment, the “Fourth Amendment Effective Date Prepayment”).
(e) Administrative Agent shall have received the Fourth Amendment Fee First Installment in full and cash.
(f) The representations and warranties in the Credit Documents will be true and correct in all feesmaterial respects (except for representations and warranties that are already qualified by materiality, charges which representations and disbursements of counsel warranties will be true and correct in all respects) immediately prior to, and immediately after giving effect to, this Amendment on the Fourth Amendment Effective Date to the Administrative Agent 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 will have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which will have been true and correct in all respects) on and as of such earlier date.
(g) All costs and, to the extent invoiced prior to or on the Fourth Amendment Effective Date, plus such additional amounts expenses (including reasonable, documented, out-of-pocket legal fees and expenses of such feesconsultants and other advisors) and other compensation payable to Administrative Agent and ▇▇▇▇▇ Fargo Securities, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or LLC will have been paid to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)extent then due.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective when (the “Third Amendment Effective Date”) upon satisfaction of the following conditions in a manner reasonably satisfactory to the Administrative Agent and only when the Lenders:
(a) The Administrative Agent shall have received executed counterparts of this Amendment the following documents and instruments or such other items as are described below, as the case may be:
(or a consent to i) this Amendment) from one hundred percent (100%) , duly executed and delivered by the Initial Borrower, Holdings, the Administrative Agent and each of the Lenders Lenders;
(ii) a Consent and Reaffirmation, in the form attached hereto as Annex C, duly executed and delivered by the Initial Borrower, Holdings and each other Credit Party;
(iii) a fee agreement, in form and substance acceptable to the Administrative Agent, duly executed and delivered by the Initial Borrower, Holdings, each other Credit Party and the following conditions precedent has been satisfied Affiliate of the Administrative Agent party thereto (the date such conditions are so satisfied herein called “Amendment Fee Letter”);
(iv) a Notice of Borrowing in respect of the “Third Amendment Term Loans;
(v) if requested by the Lender with the Third Amendment TL Commitment, a Third Amendment Term Note evidencing the Third Amendment Term Loans advanced on the Third Amendment Effective Date”):;
(avi) The Administrative Agent’s receipt the Holdings Assumption Agreement, duly executed and delivered by the parties signatory thereto;
(vii) the Benchmark Subordination Agreement, duly executed and delivered by the parties signatory thereto;
(viii) a solvency certificate from the chief executive officer or chief financial officer of Holdings in substantially the following, each form of which shall be originals or telecopies Exhibit 2.1(c) to the Credit Agreement; and
(followed promptly by originalsix) unless otherwise specified, each properly executed by a certificate of a Responsible Officer of Crosslayer, Inc., a newly organized subsidiary of Holdings (“Crosslayer”), and each Credit Party (other than the signing Credit Party, each Designated Subsidiaries) dated the Third Amendment Effective Date Date, certifying (A) that attached thereto is (1) a true and complete copy of a certificate as to the good standing of Crosslayer and each Credit Party (in so-called “long-form” if available), as of a recent date, from the Secretary of State of the state of its organization (or other applicable Governmental Authority to the extent available), (2) a true and complete copy of each Organization Document of Crosslayer and each Credit Party certified as of a recent date by the Secretary of State of the state of its organization (or, in if any such Organizational Document of a Credit Party has not been amended, restated, supplemented, or otherwise modified since the case Closing Date, certifying the absence of certificates any amendments, restatements, supplements, or modifications to such Organizational Documents of governmental officialssuch Credit Party), (3) a recent date before true and complete copy of resolutions duly adopted by the Effective Date) board of directors or similar governing body of Crosslayer and each Credit Party authorizing the execution, delivery and performance of this Amendment and each other document or instrument required to be delivered in connection herewith, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (4) a true and complete copy of the Benchmark Purchase Agreement and each other document or instruments to be executed and delivered in connection with the consummation of the Benchmark Acquisition, and (B) as to the incumbency and specimen signature of each officer executing this Amendment or any other document or instrument delivered in connection herewith on behalf of Crosslayer or any Credit Party (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate in this clause (ix)).
(b) Evidence reasonably satisfactory to the Administrative Agent that, in accordance with the Benchmark Purchase Agreement, the Benchmark Acquisition has been consummated (or will be consummated concurrently) with the funding of the Third Amendment Term Loans.
(c) There shall not exist any judgment, decree or order of any Governmental Authority which would prevent the performance of this Amendment, the Credit Agreement (as modified hereby), the Benchmark Acquisition or the transactions contemplated hereby or declare unlawful this Amendment or the other transactions contemplated hereby.
(d) The Administrative Agent and the Lenders shall have received all documentation and other information requested by the Administrative Agent or any Lender and required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.
(e) All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance satisfactory to the Administrative Agent:. It shall be a condition subsequent to the Third Amendment Effective Date that each of the following conditions subsequent are satisfied (and the failure to satisfy such conditions subsequent shall constitute an immediate Event of Default):
(a) the Administrative Agent shall have received (unless extended by the Administrative Agent in the exercise of its sole discretion):
(i) counterparts no later than April 21, 2017:
(A) amended and restated Schedules 3.18, 3.19, 3.25, 5.1, 5.4, 5.5, and 5.9 to the Existing Credit Agreement (giving pro forma effect to the Benchmark Acquisition), each of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution which shall be acceptable to the Administrative Agent and the BorrowerLenders;
(B) a Perfection Certificate, duly executed and delivered by (A) Benchmark, (B) Crosslayer, and (C) each Credit Party;
(C) the Benchmark Assumption Agreement, duly executed and delivered by the parties signatory thereto;
(D) a joinder agreement (in the form attached to the Guaranty and Security Agreement) duly executed and delivered by Benchmark, each other Credit Party thereto and the Administrative Agent;
(E) a joinder agreement (in the form attached to the Guaranty and Security Agreement) duly executed and delivered by Crosslayer, each other Credit Party thereto and the Administrative Agent;
(1) a pledge amendment (in the form attached to the Guaranty and Security Agreement) duly executed by Holdings in respect of the Stock of Benchmark acquired with the proceeds of the Third Amendment Term Loans, (2) all certificates evidencing the Stock of Benchmark acquired in the Benchmark Acquisition, accompanied by instruments of transfer or stock powers undated and endorsed in blank, and (3) UCC financing statements in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each United States jurisdiction as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to perfect the Liens created, or purported to be created, by Benchmark pursuant to the Collateral Documents;
(G) a certificate of a Responsible Officer of Benchmark, certifying (A) that attached thereto is (1) a true and complete copy of a certificate as to the good standing of Benchmark (in so-called “long-form” if available), as of a recent date, from the Secretary of State of the state of its organization (or other applicable Governmental Authority to the extent available), (2) a true and complete copy of each Organization Document of Benchmark certified as of a recent date by the Secretary of State of the state of its organization, and (3) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of Benchmark authorizing the execution, delivery and performance of the Benchmark Assumption Agreement, the Credit Agreement (as supplemented thereby) and each other document or instrument required to be delivered in connection herewith, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (B) as to the incumbency and specimen signature of each officer executing the Benchmark Assumption Agreement or any other document or instrument delivered in connection herewith or therewith on behalf of Benchmark (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate in this clause (F));
(1) a pledge amendment (in the form attached to the Guaranty and Security Agreement) duly executed by Holdings in respect of the Stock of Crosslayer, (2) all certificates evidencing the Stock of Crosslayer, accompanied by instruments of transfer or stock powers undated and endorsed in blank, (3) UCC financing statements in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each United States jurisdiction as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to perfect the Liens created, or purported to be created, by Crosslayer pursuant to the Collateral Documents, and (4) copies of UCC, United States Patent and Trademark Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name Benchmark, Crosslayer or any Credit Party as debtor and that are filed in those state and county jurisdictions in which any property of Benchmark, Crosslayer or any Credit Party is located and the state and county jurisdictions in which Benchmark, Crosslayer or any Credit Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);
(ii) a certificate on behalf of each Credit Party certifying that none no later than April 28, 2017:
(A) for the benefit of the resolutionsLender with the Third Amendment TL Commitment, incumbency certificatesthe Administrative Agent shall have received a number of shares of common Stock of Holdings representing an aggregate of 10.0% (determined on a fully diluted basis after giving effect to the consummation of the Benchmark Acquisition and all Stock and Stock Equivalents (or securities convertible into or exchangeable for Stock and\or Stock Equivalents) issued in connection therewith) of the outstanding Stock and Stock Equivalents of Holdings, organizational documents and/or certificates accompanied by supporting evidence (in form and substance reasonably acceptable to the Administrative Agent) that the issuance of Responsible Officers such shares have been duly authorized and issued in accordance with the Organizational Documents of each Holdings and all Requirements of Law; and
(B) the Administrative Agent shall have received (for the benefit of the applicable Persons described therein) all Stock contemplated to be issued pursuant to the Conditional Termination of Redemption Rights Agreement dated on or about the Third Amendment Effective Date among Holdings and the Lenders party thereto;
(iii) no later than April [●], 2017:
(A) a legal opinion from K&L Gates LLP, designated transactional counsel to Benchmark and the Credit Party Parties, and from such other counsel as the Administrative Agent has previously required evidencing the identitymay reasonably request, authority each in form and capacity of each Responsible Officer thereof authorized substance reasonably satisfactory to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is a party have been amended or are otherwise inaccurate since they were delivered.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent;
(B) updated certificates evidencing the record ownership of Holdings of all of the issued and outstanding Stock of Benchmark, the Borrower shall have paid all fees, charges accompanied by instruments of transfer or stock powers undated and disbursements of counsel endorsed in blank;
(C) customary insurance certificates and endorsements thereto in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent (on behalf of the Lenders) as an additional insured or loss payee (and mortgagee), as the case may be, under all insurance policies to be maintained with respect to the properties of the Credit Parties (including Benchmark and Crosslayer) forming part of the Collateral; and
(iv) no later than May [●], 2017:
(A) the Administrative Agent shall have received Control Agreements in respect of all Deposit Accounts of Benchmark and (to the extent invoiced prior to or not otherwise in effect on the Third Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings ) each Credit Party; and
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and B) the Administrative Agent)Agent shall have received such other documents and instruments as the Administrative Agent may reasonably request to evidence (or further evidence) that the Administrative Agent has a perfected, first priority Lien in all Collateral, subject only to Permitted Liens.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Lenders and the following conditions precedent has been satisfied (on the date (such conditions are so satisfied herein called date, if any, the “Fifth Amendment Effective Date”):) on which each of the conditions set forth below has been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received duly executed counterparts of this Amendment from the followingBorrower, each of which the Guarantor Subsidiaries and the Consenting Lenders constituting the Required Lenders.
(b) The Administrative Agent shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedhave received, each properly executed by a Responsible Officer of the signing Credit Party, 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 reasonably satisfactory to the Administrative Agent:
(i) counterparts of the Amendment Documents executed by the applicable Credit Parties sufficient in number for distribution to the Administrative Agent and the Borrower;
(ii) , a certificate on behalf of an officer of each Credit Party certifying that none attached thereto is (i) a true, correct and complete copy of resolutions duly adopted by the resolutions, incumbency certificates, organizational documents and/or certificates board of Responsible Officers directors (or other governing body) of each Credit Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Party is authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment, (ii) an incumbency of the officers or authorized representatives of such Credit Party executing this Amendment and the other Credit Documents and (iii) a party have been amended good standing certificate from the applicable Governmental Authority of the jurisdiction of incorporation, organization or are otherwise inaccurate since they were delivered.
(b) Any fees required to be paid on or before the Effective Date shall have been paidformation of such Credit Party.
(c) Unless waived by the No Default or Event of Default shall exist on such Fifth Amendment Effective Date immediately prior to or after giving effect to this Amendment.
(d) The Administrative Agent, the Borrower Agent shall have paid received the Fifth Amendment Fee in full and cash.
(e) The representations and warranties in the Credit Documents will be true and correct in all feesmaterial respects (except for representations and warranties that are already qualified by materiality, charges which representations and disbursements of counsel warranties will be true and correct in all respects) immediately prior to, and immediately after giving effect to, this Amendment on the Fifth Amendment Effective Date to the Administrative Agent 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 will have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which will have been true and correct in all respects) on and as of such earlier date.
(f) All costs and, to the extent invoiced prior to or on the Fifth Amendment Effective Date, plus such additional amounts expenses (including reasonable, documented, out-of-pocket legal fees and expenses of such fees, charges consultants and disbursements as shall constitute its reasonable estimate of such fees, charges other advisors) and disbursements incurred or other compensation payable to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)Agent and ▇▇▇▇▇ Fargo Securities, LLC will have been paid to the extent then due.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts The effectiveness of this Amendment is subject to the satisfaction (or a consent to this Amendment) from one hundred percent (100%waiver) of the Lenders and the following conditions precedent has been satisfied (the date on which all such conditions precedent are so satisfied herein called (or waived), the “Amendment Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronic images in a portable document format (e.g., “.pdf” or “.tif”) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit Party, 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 Agent:
(i) counterparts of the to this Amendment Documents executed by the applicable Borrowers, the Guarantors, each of the Increasing Lenders, Lenders comprising Required Lenders, and the Administrative Agent;
(ii) such Revolving Credit Parties sufficient in number Notes and/or Incremental Term Notes as may be requested by any of the Increasing Lenders;
(iii) appropriate Requests for distribution Credit Extension with respect to the Incremental Term Loan, and if applicable, any Revolving Credit Loans;
(iv) a favorable opinion of Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to matters concerning the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of Loan Parties, this Amendment and the resolutions, incumbency certificates, organizational documents and/or certificates of Responsible Officers of each Credit Party other Loan Documents as the Administrative Agent has previously required may reasonably request;
(v) a favorable opinion of local counsel to the Loan Parties in England, addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties, this Amendment and the other Loan Documents as the Administrative Agent may reasonably request;
(vi) an officer’s certificate of each Loan Party, dated the Amendment Effective Date, certifying as to the organizational documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), the resolutions of the governing body of each Loan Party and the good standing, existence or its equivalent of each Loan Party and attaching an incumbency certificate for each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Credit Loan Party is a party have been amended or are otherwise inaccurate since they were deliveredis to be a party (including specimen signatures);
(vii) such other assurances, certificates, documents, filings, information, consents or opinions as the Administrative Agent, the L/C Issuer, the Swingline Lender or the Lenders reasonably may require.
(b) Any fees required Upon the reasonable request of any Lender made prior to be paid on or before the Amendment Effective Date Date, the Loan Parties shall have been paidprovided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, and any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have provided, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(c) Unless waived by The Loan Parties shall have paid (i) to the Administrative Agent, for the Borrower shall have paid account of each of the Increasing Lenders who enter into commitments to provide a portion of the Additional Credit Facilities prior to the Amendment Effective Date (including, if applicable, Bank of America), the fees due and payable under the Fee Letter dated as of the date hereof between the Administrative Agent and the Domestic Borrower; and (ii) all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the extent invoiced Administrative Agent) prior to or on the Amendment Effective DateDate (or on such other date as may be agreed by such counsel). Without limiting the generality of the provisions of Section 11.01 of the Credit Agreement, plus such additional amounts for purposes of such feesdetermining compliance with the conditions specified in this Section 6, charges and disbursements as each Lender that has signed this Amendment shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through the closing proceedings (provided that such estimate shall not thereafter preclude or acceptable or satisfactory to a final settling of accounts between the Borrower and Lender unless the Administrative Agent)Agent shall have received notice from such Lender prior to the Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Diodes Inc /Del/)
Conditions to Effectiveness of Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from one hundred percent (100%) of the Majority Lenders and the following conditions precedent has have been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
(a) 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 Credit Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) Loan Party and each in form and substance satisfactory to the Administrative Agent:
(i) counterparts of the Amendment Documents executed by the applicable Credit Loan Parties sufficient in number for recordation, as applicable, and distribution to the Administrative Agent and the Borrower;.
(ii) a certificate on behalf of each Credit applicable Loan Party certifying that none of the resolutions, incumbency certificates, organizational documents Organization Documents and/or certificates of Responsible Officers of each Credit Loan Party as the Administrative Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Credit Loan Party is a party have been amended or are otherwise inaccurate since they were delivereddelivered and certifying resolutions authorizing this Amendment.
(iii) Such other documents or certificates as the Administrative Agent shall reasonably request.
(b) Any fees required to be paid to the Administrative Agent or any Lender on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract