Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied: (a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date. (b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date). (c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default. (d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full. (e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby. (f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Digital Realty Trust, Inc.), Credit Agreement (Digital Realty Trust, Inc.)
Conditions of Effectiveness. This Amendment Waiver and Amendatory Agreement shall be operative as of the date hereof but shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (ix) counterparts of this Amendment Waiver and Amendatory Agreement executed by the Borrower and each Lender the Lenders or, as to any of the said Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, Waiver and Amendatory Agreement and (iiy) the consent attached hereto (the “Consent”) executed by each all of the Guarantorsfollowing documents, each document (unless otherwise indicated) being dated the effective date, in form and substance satisfactory to the Agent:
(a) a certificate of the Secretary or an Assistant Secretary of the Borrower and the Guarantor certifying the names and true signatures of their respective officers authorized to sign this Waiver and Amendatory Agreement, and (iii) a Note payable the other documents to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.be delivered hereunder;
(b) The a certificate signed by a duly authorized officer of the Borrower stating that:
(i) the representations and warranties of the Borrower as set forth in each Article IV of the Credit Agreement and in any documents delivered therewith, including the Loan Documents shall be Documents, are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, date of such certificate as though made on and as of such date (except for any insofar as such representation representations and warranty that, by its terms, refers warranties relate expressly to an earlier date or are based on the accuracy of schedules prepared as of a specific prior date),
(ii) the representations and warranties contained in Section 4 hereof are correct on and as of the date other than the Amendment Effective Date, in which case of such certificate as though made on and as of such specific date), and
(iii) after giving effect to this Waiver and Amendatory Agreement, no Default or Event of Default has occurred and is continuing.
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower and of the Guarantor approving this Amendment Waiver and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby Amendatory Agreement and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Waiver and Amendatory Agreement and the matters contemplated hereby and thereby.hereby; and
(fd) A certificate a favorable opinion of the Secretary or an Assistant Secretary of (i) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Borrower certifying and the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject Guarantor, in a form reasonably acceptable to the provisions of Section 9.01 of the Credit AgreementAgent and Lenders.
Appears in 2 contracts
Sources: Waiver and Eleventh Amendatory Agreement (Farm Fresh Inc), Waiver and Eleventh Amendatory Agreement (Ff Holdings Corp)
Conditions of Effectiveness. This Amendment Supplemental Indenture has been executed and delivered immediately prior to the effectiveness of the Partnership Merger; provided that, notwithstanding anything in this Supplemental Indenture to the contrary, this Supplemental Indenture shall become effective as to the Successor Issuer simultaneously with the effectiveness of the first date (Partnership Merger and effective as to the “Amendment Effective Date”) on which, and only if, each Successor Guarantor simultaneously with the effectiveness of the following conditions precedent shall have been satisfiedParent Merger; provided, however, that:
(a) The Administrative Agent the Trustee shall have executed a counterpart of this Supplemental Indenture and shall have received (i) one or more counterparts of this Amendment Supplemental Indenture executed by the Borrower Issuer, the Parent, the Successor Issuer and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Successor Guarantor;
(b) The representations the Successor Issuer shall have duly executed and warranties set forth in each filed a certificate of merger with the Secretary of State of the Loan Documents shall be correct State of Delaware in all material respects on connection with the Partnership Merger and as the effective time of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of Partnership Merger established under such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).certificate shall have occurred;
(c) No event the Parent and the Successor Guarantor shall have occurred duly executed and be continuingfiled articles of merger with the Maryland State Department of Assessments and Taxation in connection with the Parent Merger, or shall result from the effectiveness such articles of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date merger shall have been paid in full.
accepted for record by the Maryland State Department of Assessments and Taxation and the effective time of the Parent Merger established under such articles shall have occurred. In addition, concurrently with the execution and delivery of this Supplemental Indenture, the Trustee acknowledges that it has received (ex) Certified copies an Officers’ Certificate from each of the Parent (on behalf of itself and on behalf of the Issuer) and the Successor Guarantor (on behalf of itself and on behalf of the Successor Issuer) stating that (i) the resolutions Mergers comply with Article X of the Board of Directors, general partner or managing member, as applicable, of (A) Indenture and that all conditions precedent therein provided for relating to the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby Mergers have been complied with and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, this Supplemental Indenture complies with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate requirements of Article IX of the Secretary or Indenture and is authorized and permitted by the Indenture and (y) an Assistant Secretary Opinion of Counsel stating that (i) the Borrower certifying the names and true signatures Mergers comply with Article X of the officers of Indenture and that all conditions precedent therein provided for relating to the Borrower authorized to sign this Amendment Mergers have been complied with and (ii) each Guarantor certifying the names and true signatures this Supplemental Indenture complies with Article IX of the officers of such Guarantor Indenture and is authorized to sign and permitted by the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementIndenture.
Appears in 2 contracts
Sources: Supplemental Indenture (Prologis, L.P.), Supplemental Indenture (DCT Industrial Operating Partnership LP)
Conditions of Effectiveness. This Amendment 3.1 The limited consent set forth in Article I shall become effective as of the first date when, and only when, the Agent shall have received an executed counterpart of this Consent and Amendment from the Lenders constituting the Majority Banks under the Facility Agreement and from the Borrower and the Guarantor.
3.2 The amendments set forth in Article II hereof shall become effective as of the date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts an executed counterpart of this Consent and Amendment executed by from the Lenders constituting the Majority Banks under the Facility Agreement and from the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Guarantor;
(b) The Merger shall have been consummated substantially simultaneously with the Amendment Effective Date in accordance with the terms of the Merger Agreement in all material respects and without giving effect to any modifications, amendments, consents or waivers of the terms of the Merger Agreement that are material and adverse to the Lenders or the Agent as reasonably determined by the Agent, without the prior consent of the Majority Banks (such consent not to be unreasonably withheld, delayed or conditioned);
(c) The Agent shall have received an executed Guaranty from RenRe Holdings in substantially the form attached hereto as Exhibit A (the “RenRe Holdings Guaranty”);
(d) The Agent shall have received a certificate, signed by an officer of the Guarantor, in form and substance reasonably satisfactory to the Agent, certifying that (i) all representations and warranties of the Borrower and the Guarantor contained in the Facility Agreement and the other Finance Documents (including the representations and warranties set forth in each of the Loan Documents shall be Article IV hereof) are true and correct in all material respects on and as of the Amendment Effective Date, before and immediately after giving effect to this AmendmentConsent and Amendment (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, as though made on in which case such representation or warranty shall be true and correct as of such date date), and (except for any such representation ii) no Default or Event of Default has occurred and warranty that, by its terms, refers to a specific date other than is continuing as of the Amendment Effective Date, in which case as of such specific date).immediately after giving effect to this Consent and Amendment;
(ce) No event All material governmental authorizations and approvals necessary in connection with the consummation of the Merger shall have occurred been obtained and shall remain in effect and shall not impose any restriction or condition materially adverse to the Agent or the Lenders; and no law or regulation shall be continuingapplicable that seeks to enjoin, restrain, restrict, set aside or prohibit, or impose materially adverse conditions upon, the consummation of the Merger; and all third-party consents necessary in connection with the consummation of the Merger shall have been obtained and remain in effect (except for any third-party consents that are not material or with respect to which the failure to obtain such consents would not result from the effectiveness of this Amendment, that constitutes in a Default.Material Adverse Effect); and
(df) All of The Borrower and the fees Guarantor shall have paid all reasonable out-of-pocket costs and expenses of the Administrative Agent Lenders in connection with the preparation, negotiation, execution and delivery of this Consent and Amendment (including including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, Agent with respect to this Amendment, the Consent and the matters contemplated hereby and therebythereto).
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 2 contracts
Sources: Facility Agreement, Facility Agreement (Renaissancere Holdings LTD)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent Bank shall have received (i) counterparts of this Amendment executed by the Borrower JLM Domestic Entities, MacDonald and each Lender orthe Bank, as to any and Sections 1, 2 and 3 hereof shall become effective when, and only when, the Bank shall have additionally received all of the Lendersfollowing documents, advice each document (unless otherwise indicated) being dated the date of receipt thereof by the Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has executed this Amendment, Bank:
(iia) The Amended and Restated Promissory Note in the consent attached hereto (the “Consent”) executed by each form of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateExhibit A1 hereto.
(b) The representations and warranties set forth in each Certified copies of (i) the resolutions of the Loan Documents shall be correct in Board of Directors of each JLM Domestic Entity approving this Amendment and the matters contemplated hereby and (ii) all material respects on documents evidencing other necessary corporate action and as of the Amendment Effective Dategovernmental approvals, before and after giving effect if any, with respect to this Amendment, as though made on Amendment and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date)matters contemplated hereby.
(c) No event shall have occurred A certificate of the Secretary or an Assistant Secretary of each JLM Domestic Entity certifying the names and true signatures of the officers of such JLM Domestic Entity authorized to sign this Amendment and the other documents to be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Defaultdelivered hereunder.
(d) All of A consent in the fees and expenses of form appended hereto as Annex I (the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full"Consent"), executed by JLM Canada.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor JLM approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebyhereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower JLM Canada certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor JLM Canada authorized to sign the Consent. The effectiveness .
(g) A favorable opinion of John ▇▇▇▇▇ ▇▇▇te, counsel for the JLM Domestic Entities and MacDonald, to the effect that this Amendment is conditioned upon has been duly authorized, executed and delivered by the accuracy JLM Domestic Entities and MacDonald, and that the amended and restated Revolving Credit Note has been duly authorized, executed and delivered by JLM Marketing, Inc., and such instruments constitute the legal, valid and binding obligations of such parties, enforceable against such parties in accordance with their respective terms, and confirming the factual matters described herein. This Amendment is subject opinion of such counsel furnished on June 15, 1994 pursuant to the provisions of Section 9.01 4.01 (n) of the Credit Agreement, with references therein to the Credit Agreement to mean the Credit Agreement as amended by this Amendment.
(h) A favorable opinion of Brans, Lehun, Bald▇▇▇ & ▇hampagne, counsel for JLM Canada, to the effect that the Consent has been duly authorized, executed and delivered by JLM Canada and constitutes the legal, valid and binding obligation of JLM Canada, enforceable against JLM Canada in accordance with its terms, and confirming the opinion of such counsel furnished on June 15, 1994 pursuant to Section 4.01(n) of the Credit Agreement, with references therein to the Credit Agreement to mean the Credit Agreement as amended by this Amendment.
(i) A certificate signed by a duly authorized officer of each JLM Domestic Entity stating that:
(i) The representations and warranties contained in Section 5 hereof are correct on and as of the date of such certificate as though made on and as of such date, and
(ii) No event has occurred and is continuing which constitutes a Default or Event of Default.
Appears in 2 contracts
Sources: Credit Agreement (JLM Industries Inc), Credit Agreement (JLM Industries Inc)
Conditions of Effectiveness. This Amendment and the amendment of the Credit Agreement as set forth in Section 1 hereof shall become effective as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) on which, and only if, when each of the following conditions precedent shall have been satisfied:
(ai) The Administrative Agent the Borrowers shall have received (i) executed and delivered counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this AmendmentAgent, (ii) the consent attached hereto (Required Lenders shall have executed and delivered counterparts of this Amendment to the “Consent”) executed by each of the Guarantors, Administrative Agent and (iii) the Administrative Agent and the Multicurrency Administrative Agent shall have executed a Note payable to the order counterpart of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.this Amendment;
(b) The the representations and warranties set forth in each of the Loan Documents Borrowers (x) contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, before they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (y) set forth in the Credit Agreement are true and correct on and as of the Amendment No. 1 Effective Date in all material respects with the same effect as though made on and as of the Amendment No. 1 Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be be true and correct in all respects);
(c) prior to and immediately after giving effect to this Amendment, as though made on and as no Default or Event of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received (i) a certificate of each Borrower, dated the Amendment No. 1 Effective Date and executed by its Secretary or Assistant Secretary, which shall result from (A) certify the effectiveness resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Borrower authorized to sign this Amendment, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of such Borrower certified by the relevant authority of the jurisdiction of organization of such Borrower and a true and correct copy of its bylaws (or a confirmation that constitutes there have been no changes to such documents since those that were delivered to the Administrative Agent on the Second Amendment Effective Date), and (ii) a Default.certificate of compliance/status/good standing, as applicable, for each Borrower from its jurisdiction of organization and each other jurisdiction in which it carries on business as may be reasonably requested by the Administrative Agent at least five (5) Business Days prior to the Amendment No. 1 Effective Date;
(de) All of the fees Borrowers shall pay all reasonable and documented out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (including but limited, in the case of legal fees and expenses, to the actual reasonable and documented out- of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent); and
(f) the Borrower shall pay all reasonable fees and expenses due to the Amendment No. 1 Arranger (including, without limitation, fees and reasonable out-of-pocket expenses of counsel for to the Administrative AgentAmendment No. 1 Arranger) due and payable required to be paid on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the ConsentNo. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.1
Appears in 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Seventh Amendment Effective Date”) on which, and only if, each of which the following conditions precedent shall have been satisfied:satisfied (or waived):
(a) The Revolving Facility Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower Borrowers, the Revolving Facility Lenders and each Lender orthe Increasing Lenders on, as to any of the Lendersor prior to, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment3:00 p.m., (ii) the consent attached hereto New York City time on April 17, 2015 (the “ConsentConsent Deadline”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.);
(b) The After giving effect to this Amendment and the transactions contemplated hereby, the representations and warranties set forth in each Article 5 of the Loan Documents shall be Credit Agreement (as amended by this Amendment) are true and correct in all material respects as of the Seventh Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and immediately prior to and after giving effect to the Seventh Amendment Effective Date, before no Default or Event of Default shall have occurred and be continuing;
(c) Immediately prior to, and after giving effect to this Amendment, as though made the Commitment Increase pursuant to Section 2 and any transaction consummated in connection therewith, the Senior Secured Leverage Ratio (assuming the Revolving Loan Facility is fully drawn) shall be no greater, calculated on and as of such date (except for any such representation and warranty thata pro forma basis, by its terms, refers than 4.50 to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.1.00;
(d) All The Revolving Facility Administrative Agent shall have received a legal opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower Parties, addressed to the Lender Group and reasonably satisfactory to the Revolving Facility Administrative Agent;
(e) The Revolving Facility Administrative Agent shall have received, with respect to each Borrower Party, a loan certificate signed by the secretary or assistant secretary of such Person, certifying a true, complete and correct copy of the resolutions of such Person (or its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of this Amendment;
(f) The Revolving Facility Administrative Agent shall have received a certificate of the secretary or an assistant secretary of the Administrative Borrower confirming compliance with the conditions precedent set forth in clause (b) of this Section 5;
(g) The Borrowers shall have paid all fees required to be paid to be paid to the Revolving Facility Lenders on or before the Seventh Amendment Effective Date (including, without limitation, the Amendment Fees and the Upfront Fees); and
(h) The Borrowers shall have paid all reasonable and documented costs and expenses of the Revolving Facility Administrative Agent in connection with this Amendment (including the reasonable fees and expenses documented fees, disbursements and other charges of Shearman & Sterling LLP as counsel for to the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in fullAgents).
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Zayo Group LLC)
Conditions of Effectiveness. This Amendment Amendatory Agreement shall be operative as of the date hereof but shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (ix) counterparts of this Amendment Amendatory Agreement executed by the Borrower Borrower, the Guarantors and each Lender the Lenders or, as to any of the said Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, Amendatory Agreement and (iiy) the consent attached hereto (the “Consent”) executed by each all of the Guarantorsfollowing documents, each document (unless otherwise indicated) being dated the effective date, in form and substance satisfactory to the Agent:
(iiia) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as certificate of the Amendment Effective Date.Secretary or an Assistant Secretary of the Borrower and the Guarantor certifying the names and true signatures of their respective officers authorized to sign this Amendatory Agreement and the other documents to be delivered hereunder;
(b) The a certificate signed by a duly authorized officer of the Borrower stating that:
(i) the representations and warranties of the Borrower as set forth in each Article IV of the Credit Agreement and in any documents delivered therewith, including the Loan Documents shall be Documents, are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, date of such certificate as though made on and as of such date (except for any insofar as such representation representations and warranty that, by its terms, refers warranties relate expressly to an earlier date or are based on the accuracy of schedules prepared as of a specific prior date),
(ii) the representations and warranties contained in Section 3 hereof are correct on and as of the date other than the Amendment Effective Date, in which case of such certificate as though made on and as of such specific date), and
(iii) after giving effect to this Amendatory Agreement, no Default or Event of Default has occurred and is continuing.
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower and of the Guarantor approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby Amendatory Agreement and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Amendatory Agreement and the matters contemplated hereby and thereby.hereby; and
(fd) A certificate a favorable opinion of the Secretary or an Assistant Secretary of (i) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Borrower certifying and the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject Guarantor, in a form reasonably acceptable to the provisions of Section 9.01 of the Credit AgreementAgent and Lenders.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ff Holdings Corp), Credit Agreement (Farm Fresh Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each the Administrative Agent shall have received counterparts of this Amendment duly executed by the Borrower, the Co-Agents, the Banks, and the Guarantors, and all of the following conditions precedent shall have been satisfieditems in form and substance satisfactory to the Administrative Agent and the Banks:
(a) The Administrative Agent shall have received (i) counterparts Copies of the resolutions of the Board of Directors or Executive Committee of the Borrower approving the transactions contemplated by the Allstate Noteholder Agreements, the documents and instruments executed in connection therewith, and this Amendment and the documents executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Dateconnection herewith.
(b) A fully executed copy of each of the Allstate Noteholder Agreements, and any material related documents.
(c) A fully executed Amended and Restated Sharing Agreement, dated as of March 15, 1999, in substantially the form of Exhibit C hereto.
(d) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) The representations and warranties set forth contained in each Section 4 of the Loan Amendment and the other representations and warranties contained in Article 5 of the Credit Agreement, as amended, and in the other Facility Documents shall be are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, date of such certificate as though made on and as of such date (except for any unless such representation and warranty that, by its terms, refers is limited to a specific date other than the Amendment Effective Dateparticular date, in which case case, such representation and warranty shall be true and correct in all material respects as of such specific date).;
(cii) No Upon the consummation of the transactions described in the Allstate Noteholder Agreements, the Borrower shall be in compliance with the financial covenants contained in Article 8 of the Credit Agreement, as amended, as of the date of such certificate; and
(iii) After giving effect to the terms of this Amendment, the Allstate Noteholder Agreements, and the amendments to the Noteholders Documents, no event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that continuing which constitutes a Default or an Event of Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies Payment to the Administrative Agent of (i) all costs, fees, expenses and charges incurred by the resolutions Administrative Agent in connection with the negotiation, preparation, execution and delivery of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Nfo Worldwide Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “First Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) (x) counterparts of this Amendment executed by the Borrower Borrower, the Administrative Agent and each Lender those Lenders comprising Required Lenders or, as to any of the such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (iiy) the consent attached hereto (the “Consent”) executed by each of the Guarantors, .
(ii) A certificate of the Secretary or an Assistant Secretary of (a) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (iiib) a Note payable to each Guarantor certifying the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as names and true signatures of the Amendment Effective Dateofficers of such Guarantor authorized to sign the Consent.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the First Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the First Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default or an Event of Default.
(d) All Section 5.02(p) of the fees and expenses of Existing Credit Agreement shall be amended as provided in Section 1 above, effective contemporaneously with the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the First Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the ConsentDate. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of the first date (the “Amendment No. 2 Effective Date”) on which, and only if, each is subject to the satisfaction of the following conditions precedent shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) duly executed by each of Loan Party, each Lender, the GuarantorsIssuing Bank, the Swingline Lender and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateAdministrative Agent.
(b) The representations and warranties set forth in Administrative Agent shall have received (i) a certificate of each of the Loan Documents shall be correct in all material respects on and Party, dated as of the Amendment No. 2 Effective DateDate and executed by a Responsible Officer, which shall (A) certify the resolutions of its Board of Directors, members or other governing body authorizing the execution, delivery and performance of this Amendment, the Amended Credit Agreement and the other Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the officers of such Loan Party authorized to sign this Amendment and the other Loan Documents to which it is a party and (C) attach the charter, articles or certificate of organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, or other equivalent organizational or governing documents, and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(c) The Administrative Agent shall have received from the Borrower a certificate signed by a Responsible Officer of the Borrower and dated as of the Amendment No. 2 Effective Date (i) certifying that, before and after giving effect (including giving effect on a pro forma basis) to the transactions contemplated by this Amendment, (A) the representations and warranties contained in Article III of the Amended Credit Agreement and the other Loan Documents are true and correct in all material respects (or in all respects in the case of any representation and warranty qualified by materiality or Material Adverse Effect) with the same effect as though made on and as of such the date hereof (except for it being understood and agreed that any such representation or warranty which by its terms is made as of a specified date is true and correct in all material respects (or in all respects in the case of any representation and warranty that, qualified by its terms, refers to a specific date other than the Amendment Effective Date, in which case materiality or Material Adverse Effect) only as of such specific specified date).
, (cB) No event shall have occurred no Default or Event of Default exists or would result therefrom, and be continuing, or shall result from (C) the effectiveness Borrower is in compliance (on a pro forma basis) with the covenants contained in Section 6.12 of this Amendment, that constitutes a Defaultthe Amended Credit Agreement.
(d) All of To the fees and expenses of extent requested by any Lender, at least five (5) days prior to the Amendment No. 2 Effective Date, (i) the Administrative Agent and Lenders shall have received (x) all documentation and other information regarding the Loan Parties requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent requested in writing of the Borrower at least ten (10) days prior to the Amendment No. 2 Effective Date and (y) a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Amendment No. 2 Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Amendment, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(e) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 2 Effective Date), which opinion shall be substantially consistent with the opinion delivered at the original closing of the Existing Credit Agreement, in addition to covering such other matters relating to the Loan Parties, the Amended Credit Agreement, this Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(f) The Administrative Agent shall have received payment of its reasonable and documented out-of-pocket expenses (including the reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, connection with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the date first date above written (the “Amendment No. 6 Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of (x) this Amendment executed by the Borrower undersigned, the Required Lenders and each Lender ▇▇▇▇▇▇▇ holding over 50% of the Term A Advances or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender ▇▇▇▇▇▇ has executed this Amendment, and (iiy) the consent Consent attached hereto (the “Consent”) executed by each of the Subsidiary Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.;
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment No. 6 Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment No. 6 Effective Date, in which case as of such specific date).;
(c) The Administrative Agent shall have received an executed copy of the Asset Purchase Agreement in form and substance satisfactory to the Administrative Agent and the Lenders;
(d) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, Amendment that constitutes a Default.Default or Event of Default (other than the Defaults and Events of Default expressly waived under Section 1);
(de) All of the accrued fees then due and invoiced expenses of the Administrative Agent (and the Lenders, including the reasonable invoiced fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date , shall have been paid in full.; and
(ef) Certified copies An amendment fee equal to 0.125% of the aggregate outstanding Term Advances (after giving effect to the Directory Sale and the prepayment of the Term Advances in connection therewith) and Revolving Credit Commitments of each Lender that delivers to the Administrative Agent a duly executed counterpart of this Amendment on or before 5:00 p.m., New York City time, on March 1, 2002, shall have been paid in full; provided that executed counterparts of this Amendment shall have been received from the Required Lenders and each required Term A Lender on or before the date hereof; provided further that in the event that the Directory Sale is not consummated by May 6, 2002, the Borrowers shall pay to such Lenders on the earlier of (i) the resolutions of the Board of DirectorsMay 8, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby 2002 and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate date of termination of the Secretary or Asset Purchase Agreement, an Assistant Secretary of (i) the Borrower certifying the names and true signatures additional amendment fee equal to 0.125% of the officers aggregate amount of Term Advances that would have been prepaid with the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers proceeds of such Guarantor authorized to sign the ConsentDirectory Sale. The effectiveness of this Amendment is further conditioned upon the accuracy of all of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Sources: Amendment and Consent No. 6 to the Loan Documents (Broadwing Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent Agent, on or prior to April 17, 1998, shall have received (i) counterparts of this Amendment executed by the Borrower Borrowers and each Lender or, as Lenders that consent to this Amendment representing 100% of the Commitments (after giving effect to any of adjustments to the LendersCommitments under Section 2), advice satisfactory and Sections 1 and 2 hereof shall become effective when, and only when, on or prior to the Current Maturity Date:
(i) the Administrative Agent shall have additionally received (all dated on or as of the same date, which shall be on or prior to the Current Maturity Date):
(A) favorable opinions of Reid & Priest LLP and Worsham, Forsythe & Wooldridg▇, ▇.L.P., each to the ▇▇▇▇▇▇ t▇▇▇ ▇▇▇▇ Am▇▇▇▇▇▇▇ ▇▇s been duly authorized, executed and delivered by the Borrowers and confirming the opinions of such counsel furnished pursuant to Section 4.01(a) of the Credit Agreement, with references therein to the Credit Agreement to mean this Amendment and the Credit Agreement, as amended by this Amendment;
(B) a certificate of the Secretary or Assistant Secretary of each Borrower certifying that attached thereto are true and complete copies of (1) the resolutions duly adopted by the Board of Directors of such Borrower authorizing the execution and delivery of this Amendment by such Borrower and the performance of its obligations under the Credit Agreement, as amended hereby, and that such Lender has executed resolutions have not been modified, rescinded on amended and are in full force and effect, and (2) all Governmental Approvals that relate to such Borrower and are required in connection with the execution and delivery of this AmendmentAmendment by such Borrower and the performance of its obligations under the Credit Agreement, as amended hereby, and that such Governmental Approvals are final, have not been modified, rescinded on amended, are not subject to any pending or threatened appeal and are in full force and effect; and
(C) such other documents as the Administrative Agent shall reasonably request; and
(ii) the consent attached hereto (principal amount of all outstanding Loans made by any Terminating Lender, accrued interest thereon to the “Consent”) executed by each date of the Guarantorspayment, and (iii) a Note all Facility Fees accrued to the Current Maturity Date and payable to any Terminating Lender, together with any all other amounts payable under the order of each Lender requesting the same in a principal amount equal Credit Agreement to such any Terminating Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment 2.1 The amendments set forth in ARTICLE I shall become effective as of the first date (the “First Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lendersfollowing, advice each in form and substance satisfactory to the Administrative Agent that such Lender has and each of the Lenders:
(i) An executed counterpart of this Amendment, Amendment from each of the Borrower and each of the Lenders.
(ii) the consent attached hereto (the “Consent”) executed by each Copies of the Guarantorsarticles or certificate of incorporation of the Borrower, together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(iii) a Note payable to Copies, certified by the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as Secretary or Assistant Secretary of the Amendment Effective DateBorrower, of its bylaws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents.
(biv) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective DateAn incumbency certificate, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, executed by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying Borrower, which shall identify by name and title and bear the names and true signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(v) A certificate, signed by an Authorized Officer, stating that on the First Amendment Effective Date the representations and warranties of the Borrower contained in Article III of this Amendment shall be true and correct on and as of the First Amendment Effective Date.
(vi) A written opinion of the Borrower’s counsel, addressed to the Administrative Agent, the Lenders and the LC Issuers, dated as of the First Amendment Effective Date, in form and substance satisfactory to the Administrative Agent.
(vii) Any Notes requested by a Lender pursuant to Section 2.12 of the Credit Agreement payable to the order of each such requesting Lender.
(viii) Such other documents as any Lender or its counsel may have reasonably requested.
(b) The Administrative Agent and the Lenders shall have received, at least five (5) Business Days prior to the First Amendment Effective Date, all documentation and other information requested by the Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including the PATRIOT Act and any applicable “know your customer” rules and regulations.
(c) Unless the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations, the Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it, in each case at least five (5) Business Days prior to the First Amendment Effective Date.
(d) The Borrower shall have paid to (i) ▇▇▇▇▇ Fargo Securities, LLC, the Administrative Agent and the Lenders any fees required under the ▇▇▇▇▇ Fargo Fee Letter (as defined below) to be paid to each of them, in the amounts due and payable on the First Amendment Effective Date as required by the terms thereof, and (ii) each Guarantor certifying JPMorgan Chase Bank, N.A. (“JPMorgan”) the names fees required under the JPMorgan Fee Letter, in the amount due and true signatures payable on the First Amendment Effective Date as required by the terms thereof. The “▇▇▇▇▇ Fargo Fee Letter” means that certain letter from ▇▇▇▇▇ Fargo and ▇▇▇▇▇ Fargo Securities, LLC to the Borrower, dated November 5, 2019, relating to certain fees payable by the Borrower in respect of the officers of such Guarantor authorized to sign the Consenttransactions contemplated by this Amendment. The effectiveness of this Amendment is conditioned upon “JPMorgan Fee Letter” means that certain letter from JPMorgan to the accuracy Borrower, dated November 5, 2019, relating to certain fees payable by the Borrower in respect of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementtransactions contemplated by this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Conditions of Effectiveness. This Amendment shall become effective in the order and in the manner herein described, as of the first date upon which each of the conditions precedent set forth below in this Section 4 shall be satisfied or waived in accordance with Section 9.08 of the Una-mended Credit Agreement (such date, the “"Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:"):
(a) The Administrative Agent Term Loan Amendment shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same become effective in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Dateaccordance with its terms.
(b) The representations Administrative Agent (or its counsel) shall have received from Holdings, the Company, the other Borrowers and warranties set forth in each Subsidiary Loan Party, the Administrative Agent, and the Lenders party hereto either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(c) The Loan Parties shall have delivered a certificate to the Administrative Agent representing and warranting that: (a) the execution, delivery and performance by Holdings, the Company and each of the Subsidiary Loan Documents shall be correct in all material respects on Parties of this Amendment are permitted under, and as do not conflict with or violate, the terms of the Amendment Effective DateUnamended Credit Agreement, the Existing Term Loan Credit Agreement, the Intercreditor Agreement or the Senior Lender Intercreditor Agreement, (b) both before and after giving effect to this Amendment, as though made no default exists under the Unamended Credit Agreement, the Credit Agreement, the Existing Term Loan Credit Agreement, the Term Loan Credit Agreement, or any indenture or supplemental indenture governing the senior notes issued by the Company and outstanding on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
and (c) No event shall have occurred and be continuingno action, consent or approval of, registration or filing with, or shall result from the effectiveness of any other action by any Governmental Authority is or will be required in connection with this Amendment, that constitutes a Default.
(d) All of the The Agents shall have received all fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable thereto or to any Lender on or prior to the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directorsand, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions extent invoiced at least 2 Business Days prior to the Amendment Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of Section 9.01 all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇-del LLP and local counsel) required to be reimbursed or paid by the Credit AgreementLoan Parties hereunder or under any Loan Document.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Global Group Inc)
Conditions of Effectiveness. This (a) The effectiveness of this Amendment shall become effective as be subject to the satisfaction of the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfiedprecedent:
(a1) The Administrative Agent shall have received from the Company and the Majority Banks a duly executed original (ior, if elected by the Agent, an executed facsimile copy) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b2) The Agent shall have received evidence of payment by the Company of all fees, costs and expenses arising under or referenced in Section 5 or Section 6(g) (to the extent invoiced) of this Amendment.
(3) The representations and warranties set forth in each Section 3 of the Loan Documents this Amendment shall be true and correct in all material respects on and as of the Amendment Effective Date, before and after giving Date with the same effect to this Amendment, as though if made on and as of such date the Effective Date (except for any to the extent such representation representations and warranty that, by its terms, refers warranties expressly refer to a specific date other than the Amendment Effective Datean earlier date, in which case they shall be true and correct in all material respects as of such specific earlier date).
(c4) No event The Agent and each of the Majority Banks shall have occurred received evidence reasonably satisfactory to it that (i) by no later than September 14, 2002, the IKOS Acquisition Date shall have occurred; (ii) there are no legal prohibitions to the consummation of a merger between the Company or a Wholly-Owned Subsidiary of the Company and be continuingIKOS (with the Company or such Wholly-Owned Subsidiary being the surviving corporation or IKOS surviving as a Wholly-Owned Subsidiary of the Company); and (iii) all approvals of any Governmental Authority and of any other Person necessary in connection with the Acquisition of IKOS have been obtained by the Company and are in full force and effect and all applicable waiting periods have expired without any notice of any action being taken or threatened by any Governmental Authority which would restrain, prevent or shall result from otherwise impose material adverse conditions on the effectiveness Acquisition of this Amendment, that constitutes a DefaultIKOS by the Company.
(d5) All The Agent shall have received a certificate signed by a Responsible Officer, dated as of the fees Effective Date, certifying after due inquiry that the conditions set forth in clauses (i), (ii) and expenses (iii) of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agentpreceding Section 4(a)(4) due and payable on the Amendment Effective Date shall have been paid in fullare satisfied.
(e6) Certified copies For purposes of (i) determining compliance with the resolutions of the Board of Directorsconditions specified in this Section 4(a), general partner or managing member, as applicable, of (A) the Borrower approving each Bank that has executed this Amendment and shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvalsAgent to such Bank for consent, if anyapproval, with respect acceptance or satisfaction, or required thereunder to this Amendment, the Consent and the matters contemplated hereby and therebybe consented to or approved by or acceptable or satisfactory to such Bank.
(fb) A certificate From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(c) The Agent will notify the Company and the Banks of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures occurrence of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementEffective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only ifwhich the following conditions shall have been satisfied (or waived):
(a) the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified in writing by the following conditions precedent Administrative Agent to the Borrower, each properly executed by an Authorized Officer of the applicable signing Loan Party, dated as of the Effective Date (except as set forth in clauses (iii)(B) and (v) below), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
i. counterparts of this Amendment duly executed by Holdings, the Borrower, each Subsidiary Guarantor and the Administrative Agent;
ii. counterparts of this Amendment duly executed by the 2016 Incremental Term Facility Lenders identified on Schedule 1 hereto;
iii. a certificate of an Authorized Officer of each Loan Party that, after giving effect to this Amendment and the transactions contemplated hereby, (A) certifies and attaches the resolutions adopted by the board of directors (or equivalent governing body) of the applicable Loan Party approving or consenting to the 2016 Incremental Term Loan Commitments and the 2016 Incremental Term Loans and (B) attaching certificates, dated on or about the Effective Date, of the good standing of each Loan Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, and to the extent reasonably requested by the Administrative Agent, each other jurisdiction where such Loan Party is qualified to do business;
iv. a certificate of an Authorized Officer of the Borrower stating that, after giving effect to this Amendment and the transactions contemplated hereby, (A) the representations and warranties made by each Loan Party set forth in Article III of the Credit Agreement and in the other Loan Documents are true and correct in all material respects (or if qualified by materiality or reference to Material Adverse Effect, in all respects) with the same effect as if then made (unless expressly stated to relate to an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date) and (B) no Default has occurred and is continuing or will result from this Amendment or the transactions contemplated hereby; and
v. a written notice from an Authorized Officer of the Borrower (together with any other information and documentation reasonably requested by the Administrative Agent) stating that the Acquisition is a “Limited Conditionality Acquisition”.
(b) all fees and expenses of the Administrative Agent that are required to be paid hereunder or pursuant to the Credit Agreement shall have been satisfied:paid in full in cash or will be paid in full in cash concurrently with the effectiveness of this Amendment; and
(ac) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender ora legal opinion, dated as to any of the LendersEffective Date, advice of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and the 2016 Incremental Term Facility Lenders and reasonably satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateAgent.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Consolidated Communications Holdings, Inc.)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (such date being referred to as the “Amendment Effective Date”) on which, and only if, when each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received:
(a) counterparts of this Amendment signed by the Borrowers, the Guarantors, the Administrative Agent, the Refinancing Lenders and the Lenders constituting Required Lenders; (b) a Revolving Credit Note, executed by the applicable Borrowers in favor of each Refinancing Revolving Credit Lender that has requested a Revolving Credit Note at least three (3) Business Days in advance of the Effective Date and (c) a Term Note, executed by the applicable Borrowers in favor of each Refinancing Term A Dollar Lender or Refinancing Term A Euro Lender that has requested a Term Note at least three (3) Business Days in advance of the Effective Date;
(a) the legal opinion of Ropes & ▇▇▇▇ LLP, counsel to the Loan Parties, (b) the legal opinion of Smith, Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Loan Parties, (c) the legal opinion of ▇▇▇▇ & Staehelin, Swiss counsel for the Lead Arrangers, (d) the legal opinion of Nagashima Ohno & Tsunematsu, Japanese counsel for the Loan Parties, and (e) the legal opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Finger P.A., Delaware counsel to the Japanese Subsidiary Borrower, in each case, dated as of the Effective Date and in form and substance reasonably satisfactory to the Administrative Agent;
(a) copies of each Organization Document for each Borrower and each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Effective Date or a recent date prior thereto; (b) signature and incumbency certificates of the officers of each Borrower and each Guarantor executing this Amendment; (c) resolutions of the Board of Directors or similar governing body of each Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (d) if available, a good standing certificate from the applicable Governmental Authority of each Borrower’s and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Effective Date;
4. an officer’s certificate with respect to the Borrowers and the Guarantors in form and substance reasonably satisfactory to the Administrative Agent as to satisfaction of the conditions set forth in clauses (f) and (g) of this Section 6;
(b) The Administrative Agent and the Lead Arrangers shall have been paid all fees payable to the Administrative Agent and the Lead Arrangers, respectively, on the Effective Date and, to the extent invoiced at least two (2) Business Days prior to the Effective Date (or as otherwise reasonably agreed by the Parent Borrower), out-of-pocket expenses required to be paid by the Parent Borrower in connection with this Amendment, including the Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in accordance with Section 10.04 of the Existing Credit Agreement.
(c) At least three (3) Business Days prior to the Effective Date, the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including a certification regarding beneficial ownership as required by the 31 C.F.R. § 1010.230), including the USA PATRIOT Act, that has been requested in writing at least ten (10) Business Days prior to the Effective Date.
(d) The Administrative Agent shall have received, for the benefit of the Applicable Lenders, all accrued and unpaid interest on the Existing Term A Loans and the Existing Revolving Loans, to but excluding the Effective Date (whether or not then due) and all accrued and unpaid fees under the Existing Facilities (whether or not then due).
(e) The Administrative Agent shall have received (i) counterparts for the account of this Amendment executed by each Refinancing Lender a fee payable in the Borrower currency in which such Loans or Commitments are denominated equal to 0.15% of the aggregate principal amount of Commitments of such Refinancing Lender not in excess of the Commitments of such Refinancing Lender under the Existing Term Loans and each Existing Revolving Credit Commitments under the Fourth Amended and Restated Credit Agreement immediately prior to the Fifth Restatement Effective Date; provided that with respect to the aggregate principal amount, if any, of Commitments of any Refinancing Lender or, as to in in excess of the Commitments of such Refinancing Lender under any of the LendersExisting Facilities under the Fourth Amended and Restated Credit Agreement immediately prior to the Fifth Restatement Effective Date (any such excess amount, advice satisfactory the “New Commitment Amount”), such fee shall be an amount equal to 0.25% of the New Commitment Amount of such Refinancing Lender and (ii) for the account of each Term Lender that has returned an executed counterpart to this Amendment to the Administrative Agent that at or prior to 5:00 p.m. (New York City time) on August 17, 2021, a consent fee payable in the currency in which such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each Loans are denominated equal to 0.025% of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a aggregate principal amount equal to of Term B Loans of such Lender’s respective Revolving Credit Commitment Term Lender as of the Amendment Fifth Restatement Effective Date.
(bf) The representations and warranties of each Loan Party set forth in each Article V of the Loan Documents Existing Credit Agreement and in each other Credit Document shall be true and correct in all material respects on and as of the Amendment Effective Date, before except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) Immediately after giving effect to this Amendment, as though made on including the making of the Refinancing Revolving Credit Loans and as the Refinancing Term Loans and the application of such date (except for any such representation and warranty thatthe proceeds therefrom, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as no Default or Event of such specific date)Default shall exist.
(ch) No event The Administrative Agent shall have occurred and be continuing, or shall result received a Solvency Certificate from the effectiveness of this Amendment, that constitutes a Default.
(d) All Responsible Officer of the fees and expenses of Parent Borrower in substantially the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, form attached hereto as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.Annex C.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of the first date (the “Amendment date on which this amendment becomes effective is referred to herein as, the "Effective Date”") on whichand the obligation of Servicer to make lines of credit available to franchisees of Sponsor under the Loan Facility Agreement, as amended hereby, and only ifthe obligation of each Participant to purchase its participation therein, is subject to receipt by Servicer of each of the following conditions precedent shall have been satisfiedin form and substance satisfactory to Servicer and each of the Participants:
(a) The Administrative Agent shall have received (i) counterparts a fee in the amount of this Amendment executed by $45,000 in immediately available funds, which the Borrower and each Lender or, as Sponsor agrees to any of pay on the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.date hereof;
(b) The representations and warranties set forth in from each of the Loan Documents shall be correct in all material respects on and as parties hereto a duly executed counterpart of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).;
(c) No event shall have occurred and be continuinga certificate of Sponsor, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All dated as of the fees and expenses date hereof, signed by the Secretary or Assistant Secretary of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of Sponsor, (i) the resolutions of the Board of Directors, general partner or managing member, certifying as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower Sponsor authorized to sign execute and deliver this Amendment, (ii) certifying that Sponsor's articles of incorporation and bylaws delivered to Servicer on November 3, 1999 have not been amended or modified and are in full force and effect as of the date hereof, and (iii) certifying a true and correct copy of the action taken by the Board of Directors or the Sponsor authorizing the Sponsor's execution, delivery and performance of this Amendment and the certificates referred to herein;
(iid) each Guarantor certifying the names and true signatures a certificate of the officers Secretary of State of the State of Georgia as to the existence of the Sponsor as a Georgia corporation;
(e) a favorable written opinion of Kilp▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇P, counsel for Sponsor and Guarantors, in form satisfactory to Servicer and each Participant and covering such Guarantor authorized matters relating to sign the Consent. The effectiveness of transactions contemplated by this Amendment is conditioned upon as Servicer may reasonably request;
(f) a duly executed amendment to the accuracy Servicing Agreement; and
(g) in addition, each of the factual matters described herein. This Amendment is subject to Participants shall have received a duly executed Participation Certificate from the provisions of Section 9.01 of the Credit AgreementServicer.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become be effective as of October 10, 2000, so long as all corporate actions of Borrower and the first date (Significant Subsidiaries taken in connection herewith and the “Amendment Effective Date”) on whichtransactions contemplated hereby shall be satisfactory in form and substance to Administrative Agent and Lenders, and only if, each of the following conditions precedent shall have been satisfied:
(a) The All reasonable out-of-pocket fees and expenses in connection with the Loan Documents, including this Amendment, including legal and other professional fees and expenses incurred on or prior to the date of this Amendment by Administrative Agent or any Lender, including, without limitation, the fees and expenses of Wins▇▇▇▇ ▇▇▇h▇▇▇▇ & ▇ini▇▇ ▇.▇. and Arth▇▇ ▇▇▇e▇▇▇▇ ▇.▇.P., shall have been paid.
(b) Administrative Agent and each Lender shall have received each of the following:
(i) counterparts year-end consolidated and consolidating (on a group basis) financial statements of this Amendment executed Domestic Borrower and its Subsidiaries for the fiscal year 2000, containing a balance sheet, income statement, statement of cash flows and an audit report by PricewaterhouseCoopers, accountants for the Borrower and each Lender orits Subsidiaries, as to any accompanied by (i) a Compliance Certificate of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this AmendmentChief Financial Officer of Domestic Borrower, (ii) a certificate of PricewaterhouseCoopers to the consent attached hereto (effect that they have reviewed and are familiar with the “Consent”) executed by each Credit Agreement and that, in examining such financial statements, they did not become aware of the Guarantorsany fact or condition which then constituted a Default or Event of Default, except for those, if any, described in reasonable detail in such certificate, and (iii) the management letter and report on internal controls, if any, delivered by PricewaterhouseCoopers in connection with their audit;
(ii) a Note payable certificate of the Borrower, in form and substance satisfactory to Administrative Agent, Required Lenders and Administrative Agent's counsel, certifying (A) as to the order of each Lender requesting accuracy in all material respects, after giving effect to this Amendment and the same Waiver in a principal amount equal to such Lender’s respective Revolving Credit Commitment as Section 1 hereof, of the Amendment Effective Date.
(b) The representations and warranties set forth in each the Credit Agreement, this Amendment and the other Loan Documents, and (B) that there exists no Default or Event of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective DateDefault, before and after giving effect to this Amendment and the Waiver in Section 1 hereof, and the execution, delivery and performance of this Amendment will not cause a Default or Event of Default;
(iii) payment of the Amendment Fee;
(iv) the Fleet Amendment, as though made on and as of such date (except for any such representation and warranty thatexecuted by all parties thereto, by its termsproviding for, refers to a specific date among other than the Amendment Effective Datethings, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) a waiver of any and all defaults existing on October 10, 2000 under that certain Reimbursement Agreement between Sencorp Systems, Inc. ("Sencorp"), Fleet and Domestic Borrower, as guarantor, dated as of July 1, 1998 (as amended, extended, renewed or restated from time to time, the Borrower approving this Amendment and the matters contemplated hereby and thereby "Reimbursement Agreement"), and (B) each Guarantor approving an amendment to the Consent Reimbursement Agreement providing for an amendment fee of no more than $100,000 and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvalscontaining amendments satisfactory to Required Lenders, if anyincluding without limitation, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject amendments to the provisions thereof so that (1) the covenants contained therein are no more restrictive on Domestic Borrower, Sencorp or any other Subsidiaries of Section 9.01 of Domestic Borrower than those contained in the Credit Agreement, as amended hereby, (2) the date upon which Fleet may demand cash collateral in the amount of all obligations of Sencorp and Domestic Borrower under the Reimbursement Agreement is extended to July 2, 2001, (3) the fee charged for the aforementioned extension is no more than $20,000, (4) the letter of credit fee thereunder shall be no more than 3.50%, per annum, prior to April 2, 2001, and no more than 4.00%, per annum, at any time thereafter, (5) additional cash collateral will be provided to Fleet in an amount equal to $50,000 per month until the aggregate amount of such additional cash collateral is equal to the Specified Amount, and (6) a $75,000 failure fee in the event that neither (a) a new letter of credit facility, acceptable under the terms of the Bond Documents, is established nor (b) the obligations of Sencorp and Domestic Borrower under the Reimbursement Agreement are completely collateralized with cash, has occurred on or before July 2, 2001; and
(v) such other documents, certificates and instruments as the Administrative Agent shall require prior to the date hereof.
Appears in 1 contract
Conditions of Effectiveness. This Amendment Agreement shall become effective as when the Administrative Agent shall have received counterparts of this Agreement executed by the first date Borrower, all Facility A Lenders, all Facility B Lenders and Lenders (including such Facility A Lenders and Facility B Lenders) that in the aggregate constitute “Amendment Effective Date”Required Lenders” under the Original Credit Agreement; provided, however, that the Lenders shall not be required to make any Advance hereunder nor shall the Issuer be required to issue any Facility Letter of Credit hereunder, unless and until (i) on which, the Administrative Agent shall have received the fees provided to be paid pursuant to the Fee Letter and only if, (ii) the Administrative Agent shall have received each of the following items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance satisfactory to the Administrative Agent, to be fully and properly executed by all parties thereto, and (except for the Notes) to be in sufficient copies for each Lender), and the conditions precedent specified below shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts A Facility A Note payable to the order of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Facility A Note payable to the order of each Facility A Lender requesting that shall have requested a Facility A Note in accordance with this Agreement; a Facility B Revolver Note and a Facility B Term Note payable to the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as order of the Amendment Effective DateAdministrative Agent and a Facility B Revolver Note and Facility B Term Note payable to the order of each of the Facility B Lenders that shall have requested such Notes in accordance with this Agreement; and a Facility C Note payable to the order of the Administrative Agent and a Facility C Note payable to the order of each of the Facility C Lenders that shall have requested a Facility C Note in accordance with this Agreement.
(b) From each Subsidiary of the Borrower (except for the Mortgage Banking Subsidiaries and the Subsidiaries listed in Schedule VII hereto), a Guaranty executed and delivered as of the Closing Date or, if such Subsidiary has heretofore executed and delivered a Guaranty pursuant to the Original Credit Agreement, a written instrument executed by such Guarantor ratifying such Guaranties.
(c) From the Borrower and each of the Guarantors that owns Capital Stock or other equity interests in any Significant Subsidiary and such other Subsidiaries as may be required pursuant to Section 8.01(a)(ii), Pledge Agreements executed and delivered as of the Closing Date or, to the extent such Pledge Agreements have heretofore been executed and delivered pursuant to the Original Credit Agreement, a written instrument executed by the Borrower and such Subsidiaries ratifying such Pledge Agreements, which Pledge Agreements pledge (in each case) the Capital Stock of such Subsidiaries, together with such stock certificates and other documents provided to be delivered pursuant to the Pledge Agreements and the Collateral Trust Agreement provided for in Section 8.03(a) (except to the extent previously delivered pursuant to the Original Credit Agreement).
(d) The favorable written opinions addressed to the Lenders, and in form and substance satisfactory to the Administrative Agent, from (i) Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇, LLP (counsel to the Borrower), with respect to Borrower and the Loan Parties (other than those that are Subsidiaries of New U.S. Home), (A) confirming the accuracy of the representations and warranties set forth in Sections 4.01 (excluding clause (b) thereof, and limited, in the case of clause (a) thereof, to the jurisdictions listed under the heading “Where Qualified” in Schedule VI hereto), 4.02, 4.06, 4.11, 4.12, and the second sentence of Section 4.08 hereof and the last sentence of Section 4.14, hereof (which opinion, as to the representations set forth in clauses (b)(ii), (c) and (d) of Sections 4.02, 4.06, 4.11, 4.12, and the second sentence of Section 4.08 hereof, may be to the best knowledge of such counsel, and may in its entirety be limited to Florida, Arizona, Delaware, Texas, California, Nevada, New York, Colorado and United States federal law); (B) to the effect that this Agreement, the Notes, the Guaranties and the other Loan Documents have been duly authorized, executed and delivered by the applicable Loan Parties; (C) that no authorization, consent, approval, license or exemption of, or filing nor registration with or other action by any New York, United States federal or Delaware governmental department, commission, board, bureau, regulatory body, agency or instrumentality or to the best knowledge of such counsel, any court is or will be necessary for the execution, delivery and performance by any applicable Loan Party of this Agreement, the Notes, the Guaranties and the other Loan Documents (as applicable); and (D) this Agreement, the Notes, the Guaranties and the other Loan Documents constitute the legal, valid and binding obligations of the applicable Loan Parties, enforceable in accordance with their respective terms, except as the rights and remedies of the Lenders thereunder may be limited by (1) applicable bankruptcy, reorganization, insolvency and other laws effecting creditors’ rights generally from time to time in effect, (2) the exercise of the discretionary powers of the court before which any proceeding seeking equitable remedies (including, without limitation, specific performance and injunctive relief) may be brought, and (3) such other qualifications expressed in the opinion, provided that such qualifications are acceptable to Administrative Agent, and (ii) from ▇▇▇▇▇▇ ▇▇▇▇ (Executive Director-Legal, of New U.S. Home) addressing the matters described in clause (i) with respect to the Subsidiaries of New U.S. Home that are Loan Parties. The opinion provided for in clause (i) above may rely on, or, if and to the extent approved by the Administrative Agent, there shall be furnished to the Administrative Agent in lieu of (but solely with respect to the matters described below) the opinion described in clause (i) above, opinions, each of which shall also be addressed to the Lenders and in form and substance, satisfactory to the Administrative Agent from counsel retained by the Borrower, satisfactory to the Administrative Agent and licensed to practice law in the States of Arizona, California, Colorado, Nevada and Texas which opinions shall address matters of law in such states. The Borrower hereby instructs such counsel to prepare their opinions and deliver such opinions to the Lenders for the benefit of the Lenders, and such opinions shall contain a statement to such effect.
(e) The following supporting documents with respect to each Loan Party: (i) a copy of its certificate or articles of incorporation or formation or certificate of limited partnership (as applicable) certified as of a date reasonably close to the Closing Date to be a true and accurate copy by the Secretary of State of its state of incorporation or formation (except as otherwise provided below); (ii) a certificate of that Secretary of State, dated as of a date reasonably close to the Closing Date, as to its existence and (if available) good standing; (iii) a certificate of the Secretary of State of each jurisdiction, other than its state of incorporation or formation, in which it does business, as to its qualification as a foreign corporation, limited partnership or limited liability company; (iv) a copy of its by-laws, partnership agreement or operating agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its by-laws, partnership agreement or operating agreement (as applicable) in effect on the Closing Date (except as otherwise provided below); (v) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Agreement; (vi) a copy of resolutions of its Board of Directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such Board of Directors, or other appropriate resolutions or consents of, its partners or members certified by its general partner or manager (as applicable) to be true and correct copies thereof duly adopted, approved or otherwise delivered by its partners or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the Closing Date, authorizing the execution and delivery by it of this Agreement, the Notes, the Guaranties and the other Loan Documents shall be to which it is a party and the performance by it of all its obligations thereunder; and (vii) such additional supporting documents and other information with respect to its operations and affairs as the Administrative Agent may reasonably request; provided, however, that, with respect to Loan Parties (other than the Borrower and Significant Subsidiaries) whose certificate or articles of incorporation or formation or certificate of limited partnership (as provided in clause (i) above) or by-laws, partnership agreement or operating agreement (as provided in clause (iv) above) has not been amended or modified since the date that a certified copy thereof was delivered to the Administrative Agent pursuant to the Original Credit Agreement, the Borrower may furnish in lieu thereof a certificate of the secretary, assistant secretary, general partner, manager or other appropriate Person (as applicable) on behalf of such Loan Party that such Loan Party’s certificate or articles of incorporation or formation or certificate of limited partnership (as provided in clause (i) above) or by-laws, partnership agreement or operating agreement (as provided in clause (ii) above) has not been modified or amended since the date so furnished and remains in full force and effect.
(f) Certificates signed by a duly authorized officer of the Borrower stating that: (i) the representations and warranties of the Borrower contained in Article IV hereof are correct in all material respects and accurate on and as of the Amendment Effective Date, before and after giving effect to this Amendment, Closing Date as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Closing Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action no event has occurred and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebyis continuing which constitutes an Event of Default or Unmatured Default hereunder.
(fg) A certificate signed by an Authorized Financial Officer of the Secretary or an Assistant Secretary of Borrower showing in reasonable detail the calculations used to determine the Leverage Ratio for the Pricing Grid.
(h) The certified financial statements provided for in Section 6.04(b) and Section 6.04(c) hereof for the quarter ending February 28, 2002.
(i) The report provided for in Section 6.04(g) hereof for the Borrower certifying month ending March 31, 2002.
(j) The certified report provided for in Section 6.04(l) hereof for the names and true signatures of quarter ending February 28, 2002.
(k) Such other documents as the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementAdministrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower Borrowers and each Lender or, as to any all of the LendersBanks, advice except that Section 1 hereof shall become effective when, and only when, the Agent shall have additionally received all of the following documents, each document (unless otherwise indicated) being dated the date of receipt thereof by the Agent (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Banks:
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(ea) Certified copies of (i) the resolutions of the Board of Directors, general partner Directors or managing member, as applicable, Executive Committee of (A) the each Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and hereby, (ii) all documents evidencing the other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Amendment and the matters contemplated hereby hereby, and thereby(iii) all waivers and amendments with respect to the Junior Debt concerning the matters covered by this Amendment, which shall include an amendment to the Junior Debt documents extending the maturity date thereof to January 15, 1999.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the each Borrower certifying the names and true signatures of the officers of the such Borrower authorized to sign this Amendment and the other documents to be delivered hereunder.
(c) A favorable opinion of Brob▇▇▇, ▇▇le▇▇▇ & ▇arr▇▇▇▇ ▇▇▇, counsel for the Borrowers, to the effect that this Amendment and each and every other document delivered by any of the Borrowers have been duly authorized, executed and delivered by such Borrowers, and constitute the legal, valid and binding obligations of such Borrowers, enforceable against such Borrowers in accordance with their respective terms, and as to such other matters as the Agent may reasonably require.
(d) A certificate signed by a duly authorized officer of each Borrower stating that:
(i) The representations and warranties contained in Section 4 hereof are correct on and as of the date of such certificate as though made on and as of such date, and
(ii) each Guarantor certifying After giving effect to the names and true signatures terms of the officers Amendment, no event has occurred and is continuing which constitutes a Default or an Event of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementDefault.
Appears in 1 contract
Sources: Credit Agreement (Us Homecare Corp)
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (the “Amendment Effective Date”) on whichabove written when, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) Amendment and the consent attached hereto (the “Consent”) executed by each of the Guarantors, Guarantor and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateGrantor.
(b) The representations and warranties set forth in each Agent shall have received a certificate of the Loan Documents shall be correct in all material respects on and as Secretary or Assistant Secretary of the Amendment Effective DateBorrower, before in form and after giving effect substance satisfactory to the Agent, which certificate shall (i) certify as to the incumbency and signature of the officers of the Borrower executing this Amendment, as though made on (ii) have attached to it a true and as correct copy of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of DirectorsDirectors of the Borrower, general partner or managing memberwhich resolutions shall authorize the execution, as applicable, delivery and performance of (A) the Borrower approving this Amendment and (iii) certify that, as of the matters contemplated hereby and thereby and date of such certificate (B) each Guarantor approving which shall not be earlier than the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvalsdate hereof), if anynone of such resolutions shall have been amended, with respect to this Amendmentsupplemented, the Consent and the matters contemplated hereby and therebymodified, revoked or rescinded.
(fc) A The Agent shall have received a certificate of the Secretary or an Assistant Secretary of (i) the Borrower each Guarantor and Grantor certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment Guarantors and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor Grantors authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon Consent and the accuracy other documents to be delivered hereunder.
(d) A certificate signed by a duly authorized officer of the factual matters described herein. This Amendment is subject to Borrower stating that:
(i) each of the provisions of Section 9.01 representations and warranties contained in Article V of the Credit Agreement and each other Loan Document is true and correct in all material respects on and as of the date hereof, as if made on and as of such date, except to the extent that such representations and warranties relate to a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specific date; provided, however, that references in the Credit Agreement to “this Agreement” and references in each other Loan Document to the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended hereby; and
(ii) no event has occurred and is continuing that constitutes a Default (other than the Specified Defaults).
(e) The Borrower shall have paid to the Agent, for the account of each Lender executing this Amendment within the time period required by the Agent in accordance with its Pro Rata Share, a nonrefundable fee equal to 0.25% in respect of such Lender’s Revolving Credit Commitment.
(f) The Borrower shall have paid all fees and expenses of the Agent and the Lenders (including all reasonable fees and out-of-pocket costs and expenses of legal counsel to the Agent) for which invoices in reasonable detail have been provided to Borrower at least two Business Days prior to the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Geokinetics Inc)
Conditions of Effectiveness. This Amendment (a) The Agreement shall become effective as of the first date (Effective Date of this Agreement upon the “Amendment Effective Date”) on which, and only if, each satisfaction of all of the following conditions precedent shall have been satisfiedconditions:
(ai) The Borrowers shall have delivered to Administrative Agent shall have received an original (ior executed faxed or electronic copy) counterparts of this Amendment executed by the Borrower and each Lender orAgreement, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) duly executed by each of the GuarantorsLoan Parties;
(ii) the receipt by Administrative Agent of the payment, in immediately available funds, of the Modification Fee that is due and payable on the date hereof;
(iii) a Note payable to each of the order representations and warranties contained in Section 6 of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment this Agreement shall be true, correct and accurate as of the Amendment Effective Datedate of this Agreement; and
(iv) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Agreement or any of the transactions arising hereunder or otherwise related hereto or referred to herein, including any actual out-of-pocket costs, expenses, charges or expenses of Administrative Agent and the reasonable fees, charges and disbursements of counsel for Administrative Agent.
(b) The representations parties hereto specifically acknowledge and warranties set forth agree that: (i) the execution and delivery of this Agreement shall not be deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the other Loan Documents. Except as expressly amended pursuant hereto, the Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed in all respects, and the Collateral described in the Loan Documents shall be correct in all material respects on and as continue to secure the Obligations. Each of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of Guarantors party hereto: (i) specifically consents to the resolutions terms of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and Agreement; (ii) reaffirms its obligations under its Guaranty and under all documents evidencing other necessary corporate action Loan Documents to which it is a party; (iii) reaffirms the waivers of each and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate every one of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names defenses to such obligations as set forth in such Guaranty and true signatures of the officers of the Borrower authorized to sign this Amendment each such other Loan Document; and (iiiv) reaffirms that its obligations under such Guaranty and each Guarantor certifying such other Loan Document are separate and distinct from the names and true signatures obligations of any other party under the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementLoan Documents.
Appears in 1 contract
Sources: Loan and Security Agreement (Live Oak Acquisition Corp)
Conditions of Effectiveness. This Amendment shall become effective as of the date first date written above (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The the Administrative Agent shall have received all fees (including, without limitation, all upfront fees) payable by the Borrower pursuant to that certain proposal letter agreement, dated October 5, 2011, among Union Bank, the Borrower, TEP, UNS Gas and UNS Electric (the “Proposal Letter”), together with, to the extent invoiced, reimbursement or payment of all reasonable fees and out-of-pocket disbursements of counsel to the Administrative Agent and other out-of-pocket expenses of the Administrative Agent required to be reimbursed or paid by the Borrower pursuant to the Proposal Letter, (b) all requisite Governmental Authorities and third parties, if any, shall have approved or consented to the execution, delivery and performance by the Borrower of this Amendment and the Amended Agreement and the transactions contemplated thereby (collectively, the “Transactions”) to the extent required and material (and the Administrative Agent shall have received copies, certified by an Authorized Officer to be true, correct and complete and in full force and effect, of all such approvals and consents, which shall be in form and substance satisfactory to the Administrative Agent and the Lenders), no stay of any applicable regulatory approval shall have been issued and there shall be no litigation or governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose burdensome conditions on this Amendment, the Amended Agreement, any of the other Loan Documents or the Transactions, and (c) the Administrative Agent shall have received: (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any all of the Lendersparties hereto (in sufficient quantity for each party to have a fully executed original), advice and (ii) all of the following documents, each document being dated the Effective Date unless otherwise specified below, in form and substance satisfactory to the Administrative Agent that and in the number of originals or photostatic copies reasonably requested by the Administrative Agent:
(A) a favorable written opinion (addressed to the Administrative Agent, the Issuing Banks and the Lenders) of (1) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, New York counsel for the Borrower, and (2) ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel for the Borrower, in each case covering such Lender has executed customary matters relating to this Amendment, the Amended Agreement and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions;
(iiB) such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, the authorization of the Transactions, and any other legal matters relating to the Borrower, this Amendment, the Amended Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel;
(C) a certificate (the statements in which shall be true), signed by an Authorized Officer, certifying that:
(1) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties of the Borrower set forth in each of this Amendment, the Amended Agreement and the other Loan Documents shall be are true and correct in all material respects on and as of the Amendment Effective DateDate with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct as of such earlier date); and
(2) both before and after giving effect to this Amendment, as though made on no Default has occurred and is continuing;
(D) a certificate, signed by an Authorized Officer, confirming compliance with the conditions set forth in this Section 2; and
(E) copies of all amendments to the TEP Loan Documents (including, without limitation, Amendment No. 1, dated as of such the date (except for any such representation and warranty thathereof, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the TEP Credit Agreement), certified by an Authorized Officer as complete and correct and in full force and effect.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become be effective as of on the first date (the “"Amendment Effective Date”") on which, and only if, that each of the following conditions precedent shall have has been satisfied:
(a) The Administrative Agent shall have received (i) counterparts Counterparts of this Amendment shall have been executed by the Borrower and each Lender or, as delivered to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendmentby Borrower, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, Administrative Agent and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Lenders;
(b) The representations Borrower, Guarantor and warranties set forth each Subordinated Debtholder shall have executed and delivered to Administrative Agent their respective consents in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).forms attached hereto;
(c) No event Copies of certificates of good standing shall have occurred been delivered for Borrower and be continuingGPE, or shall result from certified by the effectiveness appropriate governmental officer in their jurisdiction of this Amendment, that constitutes a Default.organization;
(d) All Copies, certified by the Secretary or Assistant Secretary of the fees Borrower and expenses GPE, of the Administrative Agent their Articles of Organization or Articles of Incorporation, Operating Agreement or Bylaws (including the reasonable fees together with all amendments thereto) and expenses of its Board of Directors' resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.execution of this Amendment;
(e) Certified copies of (i) the resolutions of the Board of DirectorsAn incumbency certificate, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of executed by the Secretary or an Assistant Secretary of (i) each of Borrower and GPE, which shall identify by name and title and bear the Borrower certifying the names and true signatures signature of the officers of Borrower and GPE, as the Borrower case may be, authorized to sign this Amendment and the other Loan Documents, upon which certificate Administrative Agent and Lenders shall be entitled to rely until informed of any change in writing by Borrower or GPE, as the case may be;
(i) A certificate, in form and substance satisfactory to Administrative Agent, signed by the Chief Financial Officer or the Vice President, Corporate Development & Finance of Borrower, stating that on Amendment Effective Date no Default or Unmatured Default has occurred and is continuing and (ii) a schedule of Distributions made by the Borrower in the twelve calendar months preceding the Amendment Effective Date;
(g) Written opinions of Borrower's and Guarantor's counsel, addressed to Administrative Agent and Lenders, in form and content acceptable to Administrative Agent;
(h) Evidence satisfactory to Administrative Agent that Borrower has paid the arrangement and amendment fees previously agreed to between Administrative Agent and the Borrower, together with the expenses which Administrative Agent and Borrower have agreed to herein;
(i) Audited Consolidated Financial Statements for Borrower for the fiscal year ending in 2004, and (b) Unaudited Interim Consolidated Financial Statements for Borrower for each Guarantor certifying fiscal month and quarterly period ended after the names latest fiscal year referred to in clause (a), and true signatures such financial statements shall not, in the judgment of Administrative Agent, disclose any Material Adverse Change in the consolidated financial position of Borrower from what was reflected in the financial statements previously furnished to Administrative Agent;
(j) A statement disclosing Permitted Existing Liens on the assets of Borrower and its Subsidiaries satisfactory to Administrative Agent;
(k) Results of a recent lien search in each relevant jurisdiction with respect to Borrower, and such search shall reveal no liens on any of the officers assets of such Guarantor authorized to sign Borrower except for the Consent. The effectiveness of this Amendment is conditioned upon Permitted Existing Liens;
(l) A certificate from the accuracy Chief Financial Officer or Vice President, Corporate Development & Finance of the factual matters described herein. This Amendment Borrower which shall document that the Borrower is subject to Solvent both before and after entering into this Agreement and the provisions of Section 9.01 of transactions contemplated hereby; and
(m) Such other documents as the Credit AgreementAdministrative Agent or any Lender or its counsel may have reasonably requested.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent Bank shall have received (i) counterparts of this Amendment executed by the Borrower Borrowers and each Lender or, as to any the Bank and the Bank shall have additionally received all of the Lendersfollowing documents, advice each document (unless otherwise indicated) being dated the date of receipt thereof by the Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) Bank and the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Guarantor:
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(ea) Certified copies of (i) the resolutions of the Board of Directors, general partner Directors or managing member, as applicable, Executive Committee of (A) the each Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and hereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Amendment and the matters contemplated hereby hereby, (iii) all waivers and therebyamendments with respect to the Senior Debt (as defined in the Intercreditor Agreement) concerning the matters covered by this Amendment, which shall include an amendment to the Senior Debt (as defined in the Intercreditor Agreement) documents extending the maturity date thereof to March 31, 1998 and (iv) an executed copy of Amendment No. 4 to Receivables Purchase and Servicing Agreement extending the maturity date of the Purchase Agreement to March 31, 1998 and in form and substance satisfactory to the Bank and the Guarantor.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the each Borrower certifying the names and true signatures of the officers of the such Borrower authorized to sign this Amendment and other documents to be delivered hereunder.
(c) A favorable opinion of Brob▇▇▇, ▇▇le▇▇▇ & ▇arr▇▇▇▇ ▇▇▇, counsel for the Borrowers, to the effect that this Amendment and each and every other document delivered by any of the Borrowers have been duly authorized, executed and delivered by such Borrowers, and constitute the legal, valid and binding obligations of such Borrowers, enforceable against such Borrowers in accordance with their respective terms, and as to such other matters as the Bank or the Guarantor may reasonable require.
(d) A certificate signed by a duly authorized officer of each Borrower stating that:
(i) The representations and warranties contained in Section 3 hereof are correct on and as of the date of such certificate as though made on and as of such date, and
(ii) each Guarantor certifying After giving effect to the names and true signatures terms of the officers Amendment, no event has occurred and is continuing which constitutes a Default or an Event of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment Default.
(iii) 1 is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject effective.
(e) A 1998 Business Plan (forecasted on a monthly basis).
(f) A fully executed amendment to the provisions Guarantee extending the termination date thereof to a date no earlier than April 30, 1998.
(g) Payment of Section 9.01 of a $10,000 extension fee to the Credit AgreementBank, which shall be fully earned by the Bank on the date so paid.
Appears in 1 contract
Sources: Credit Agreement (Us Homecare Corp)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent Bank shall have received (i) counterparts of this Amendment executed by the Borrower Borrowers and each Lender orthe Bank and the consent hereto executed by the Guarantor, as to any except that Section 1 hereof shall become effective when, and only when, the Bank shall have additionally received all of the Lendersfollowing documents, advice each document (unless otherwise indicated) being dated the date of receipt thereof by the Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) Bank and the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Guarantor:
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(ea) Certified copies of (i) the resolutions of the Board of Directors, general partner Directors or managing member, as applicable, Executive Committee of (A) the each Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and hereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Amendment and the matters contemplated hereby hereby, and thereby(iii) all waivers and amendments with respect to the Senior Debt (as defined in the Intercreditor Agreement) concerning the matters covered by this Amendment, which shall include an amendment to the Senior Debt (as defined in the Intercreditor Agreement) documents extending the maturity date thereof to January 4, 1999.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the each Borrower certifying the names and true signatures of the officers of the such Borrower authorized to sign this Amendment and the other documents to be delivered hereunder.
(c) A favorable opinion of Brob▇▇▇, ▇▇le▇▇▇ & ▇arr▇▇▇▇ ▇▇▇, counsel for the Borrowers, to the effect that this Amendment and each and every other document delivered by any of the Borrowers have been duly authorized, executed and delivered by such Borrowers, and constitute the legal, valid and binding obligations of such Borrowers, enforceable against such Borrowers in accordance with their respective terms, and as to such other matters as the Bank or the Guarantor may reasonably require.
(d) A certificate signed by a duly authorized officer of each Borrower stating that:
(i) The representations and warranties contained in Section 4 hereof are correct on and as of the date of such certificate as though made on and as of such date, and
(ii) each Guarantor certifying After giving effect to the names and true signatures terms of the officers Amendment, no event has occurred and is continuing which constitutes a Default or an Event of such Guarantor authorized Default.
(iii) All conditions to sign the Consent. The effectiveness of this Section 1 of Amendment is conditioned upon the accuracy of the factual matters described hereinNo. This Amendment is subject 5 to the provisions Restated First Credit Agreement with the Senior Lenders, a certified copy of which shall have been provided to the Bank as provided above, have been satisfied and that Section 9.01 of 1 is effective.
(e) A fully executed amendment to the Credit AgreementGuarantee extending the termination date thereof to a date no earlier than January 30, 1999.
Appears in 1 contract
Sources: Credit Agreement (Us Homecare Corp)
Conditions of Effectiveness. 2.1 This Amendment shall become effective as of the first date hereof (the “Second Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts a counterpart of this Amendment executed and delivered by the Borrower and each Lender orBorrowers, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) and the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateRequired Lenders.
(b) The Administrative Agent shall have received the ▇▇▇▇▇▇ Guaranty executed by ▇▇▇▇▇▇.
(c) The representations and warranties set forth in each of the Borrowers contained in Article V of the Existing Credit Agreement and in the other Loan Documents shall be and the representations of ▇▇▇▇▇▇ in the ▇▇▇▇▇▇ Guaranty are true and correct in all material respects on and as of the Second Amendment Effective Date, before and after giving with the same effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers unless stated to a specific date other than the Amendment Effective Daterelate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such specific earlier date).
(cd) No event shall have Default has occurred and be continuing, is continuing or shall will result from the execution and delivery or effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of The Administrative Agent shall have received (i) the resolutions a certificate of the Board Secretary or Assistant Secretary of Directors▇▇▇▇▇▇ as to the Organization Documents, general partner resolutions or managing memberother action and incumbency as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of its Responsible Officer thereof authorized to act as a Responsible Officer in connection with the ▇▇▇▇▇▇ Guaranty and evidencing that ▇▇▇▇▇▇ is duly organized or formed, validly existing, in good standing (to the extent such concept is applicable) and qualified to engage in business in the jurisdiction in which it is organized; and (ii) a favorable opinion from McGuireWoods LLP, of counsel to ▇▇▇▇▇▇ in New York and Virginia, addressed to the Administrative Agent, the Fronting Bank and each Lender and in form and substance reasonably acceptable to the Administrative Agent.
(Af) The Borrowers shall have paid (i) all fees owing to the Borrower approving this Amendment Lenders as agreed between the Borrowers and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby Lenders and (ii) all documents evidencing other necessary corporate action expenses then due and governmental approvals, if any, with respect owing under the Loan Documents (including any reasonable legal fees and related out-of-pocket expenses to this Amendment, the Consent and extent invoiced prior to the matters contemplated hereby and thereby.
(f) A certificate date of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementhereof).
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of is subject to the first date (the “Amendment Effective Date”) on which, and only if, each satisfaction of the following conditions precedent shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received received:
(i) counterparts of this Amendment duly executed by the Borrower, each of the Lenders, each of the Issuing Lenders and the Administrative Agent;
(ii) a certificate, dated as of the date hereof, of the Secretary or Assistant Secretary of the Borrower (A) attaching a true and complete copy of the resolutions of its Board of Directors authorizing the execution and delivery of this Amendment by the Borrower and each Lender or, as to any the performance of the LendersBorrower’s obligations hereunder and under the Facility Agreement as amended by this Amendment, advice and of all other documents evidencing other necessary action (in form and substance reasonably satisfactory to the Administrative Agent that such Lender has executed Agent) taken by it to authorize this Amendment, the amended Facility Agreement and the transactions contemplated hereby and thereby, (iiB) the consent attached hereto attaching a true and complete copy of its certificate of incorporation and bylaws, (the “Consent”C) executed by each certifying that said certificate of the Guarantorsincorporation and bylaws are true and complete copies thereof, are in full force and effect and have not been amended or modified, and (D) setting forth the incumbency of its officer or officers who may sign this Amendment, including therein a signature specimen of such officer or officers;
(iii) a Note payable certificate of good standing for the Borrower from the Secretary of State of the State of Delaware, dated a recent date prior to the order of each Lender requesting the same in this Amendment;
(iv) a principal amount equal to such Lender’s respective Revolving Credit Commitment certificate, dated as of the date hereof, signed by a senior vice president, the chief financial officer or the treasurer of the Borrower certifying as of the date hereof (x) that after giving effect to this Amendment Effective Date(A) no Default has occurred and is continuing, (B) all representations and warranties of the Borrower contained in Article IV of the Facility Agreement, as amended hereby, are true and correct as of the date hereof, (C) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Borrower or any of its Subsidiaries has occurred and is continuing which could reasonably be expected to materially and adversely affect the ability of the Borrower to perform its obligations under the Loan Documents (as amended hereby), (D) there exists no Material Adverse Change and (E) there exists no injunction, writ, preliminary restraining order or other order of any nature issued by any Governmental Authority in any respect directly affecting the transactions provided for herein or by the Facility Agreement as amended hereby and no action or proceeding by or before any Governmental Authority has been commenced and is pending or, to the knowledge of the Borrower, threatened, seeking to prevent or delay the transactions contemplated by this Amendment and the Loan Documents (as amended hereby) or challenging any other terms and provisions hereof or thereof or seeking any damages in connection therewith and (y) the current Ratings; and
(v) an opinion of counsel for the Borrower covering such matters relating to the transactions contemplated hereby and by the Facility Agreement (as amended hereby) as the Administrative Agent may reasonably request, dated as of the date hereof.
(b) The representations and warranties set forth in Administrative Agent shall have received, for the account of each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect Lender party hereto that delivers its executed signature page to this Amendment, as though made on and as of such date (except for any such representation and warranty that, Amendment by its terms, refers to a specific date other no later than the Amendment Effective Datedate and time specified by the Administrative Agent, an upfront fee in which case as of such specific date)an amount equal to the amount previously disclosed to the Lenders.
(c) No event The Borrower shall have occurred and be continuingpaid, or shall result from to the effectiveness of this Amendmentextent invoiced, that constitutes a Default.
(d) All of the fees and all out-of-pocket expenses of the Administrative Agent (including the reasonable attorneys’ fees and expenses of counsel for the Administrative Agentexpenses) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving connection with this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebyLoan Documents.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Sources: Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichAugust 31, 1996, if, and only if, the Agent has received each of the following conditions precedent shall have been satisfiedfollowing:
(a) The Administrative Agent shall have received (i) counterparts duly executed originals of this Amendment executed by from the Borrower Borrower, the Agent and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.,
(b) The representations duly executed originals of a Warrant Purchase Agreement from the Borrower and warranties set forth the Lenders in each of form and substance acceptable to the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).Lenders,
(c) No event shall duly executed originals of warrants (the "Warrants") for the purchase of an aggregate amount of 550,000 shares of common stock of the Borrower in form and substance acceptable to the Lenders,
(d) a reaffirmation from Norand Technology Corporation, a Delaware corporation, in form and substance acceptable to the Lenders,
(e) a certificate, signed by the Secretary or Assistant Secretary of the Borrower, stating that there has been no change in the articles of incorporation and by-laws of the Borrower since those delivered in connection with the Credit Agreement or if there have occurred and be continuingbeen changes, setting forth such changes,
(f) a certificate of good standing or shall result qualification to do business of recent date for the Borrower from the effectiveness States of Iowa, Minnesota and Delaware,
(g) copies, certified by the Secretary or Assistant Secretary of the Borrower, of its Board of Directors' resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing the execution of this Amendment, that constitutes a Default.the Notes and the Warrants and related Warrant Purchase Agreement,
(dh) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directorsan incumbency certificate, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of executed by the Secretary or an Assistant Secretary of (i) the Borrower certifying Borrower, which shall identify by name and title and bear the names and true signatures signature of the officers of the Borrower authorized to sign this Amendment the Amendment, the Notes and the Warrants and to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower,
(iii) each Guarantor certifying written opinions of Maye▇ ▇▇▇▇▇ & ▇lat▇, ▇▇ecial counsel to the names Borrower and true signatures its Subsidiaries, and of Jame▇ ▇. ▇▇▇▇▇▇▇, ▇▇neral Counsel of the officers Borrower, addressed to the Lenders in form and substance reasonably acceptable to the Lenders,
(j) for the account of each Lender, a restructuring fee equal to one-tenth of one percent (.10%) of such Guarantor authorized to sign Lender's Commitments as in effect on the Consent. The effectiveness date of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementdelivery hereof, and
(k) such other documents, instruments and agreements as any Lender or Sidley & Austin may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Norand Corp /De/)
Conditions of Effectiveness. This Amendment 2.1 The amendments set forth in ARTICLE I shall become effective as of the first date (the “First Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lendersfollowing, advice each in form and substance satisfactory to the Administrative Agent that such Lender has and each of the Lenders:
(i) An executed counterpart of this Amendment, Amendment from each of the Borrower and each of the Lenders.
(ii) the consent attached hereto (the “Consent”) executed by each Copies of the Guarantorsarticles or certificate of incorporation of the Borrower, together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(iii) a Note payable to Copies, certified by the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as Secretary or Assistant Secretary of the Amendment Effective DateBorrower, of its bylaws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents.
(biv) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective DateAn incumbency certificate, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, executed by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying Borrower, which shall identify by name and title and bear the names and true signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(v) A certificate, signed by an Authorized Officer, stating that on the First Amendment Effective Date the representations and warranties of the Borrower contained in Article III of this Amendment shall be true and correct on and as of the First Amendment Effective Date.
(vi) A written opinion of the Borrower’s counsel, addressed to the Administrative Agent, the Lenders and the LC Issuers, dated as of the First Amendment Effective Date, in form and substance satisfactory to the Administrative Agent.
(vii) Any Notes requested by a Lender pursuant to Section 2.12 of the Credit Agreement payable to the order of each such requesting Lender.
(viii) Such other documents as any Lender or its counsel may have reasonably requested.
(b) The Administrative Agent and the Lenders shall have received, at least five (5) Business Days prior to the First Amendment Effective Date, all documentation and other information requested by the Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including the PATRIOT Act and any applicable “know your customer” rules and regulations.
(c) Unless the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations, the Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it, in each case at least five (5) Business Days prior to the First Amendment Effective Date.
(d) The Borrower shall have paid to (i) ▇▇▇▇▇ Fargo Securities, LLC, the Administrative Agent and the Lenders any fees required under the ▇▇▇▇▇ Fargo Fee Letter (as defined below) to be paid to each of them, in the amounts due and payable on the First Amendment Effective Date as required by the terms thereof, and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.JPMorgan Chase Bank,
Appears in 1 contract
Sources: Credit Agreement
Conditions of Effectiveness. This Amendment is subject to the provisions of Section 8.01 of the Credit Agreement. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:
(a) The origination of the HEI Default when the Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender all of the Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this AmendmentAmendment and Sections 1, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, 2 and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents 3 hereof shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and become effective as of such date (except for any such representation when, and warranty thatonly when, by its termson or before June 1, refers to a specific date other than 1998 the Amendment Effective Date, in which case as of such specific date).
(c) No event Administrative Agent shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All additionally received all of the fees and expenses following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (including the reasonable fees unless otherwise specified) and expenses of counsel in sufficient copies for each Lender, in form and substance satisfactory to the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.Agent (unless otherwise specified):
(ea) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each the Guarantor approving evidencing approval of the Consent Guaranty and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Guaranty and the matters contemplated hereby and thereby.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower and the Representative Director or a duly authorized officer of the Guarantor certifying the names and true signatures of the officers of the Borrower and the Guarantor authorized to sign this Amendment and the Guaranty, respectively, and the other documents to be delivered hereunder and thereunder.
(c) Counterparts of the Guaranty in the form attached as Exhibit A hereto, executed by the Guarantor.
(d) Favorable opinions of Bae, ▇▇▇ & ▇ee, ▇▇unsel for the Guarantor, or other Korean counsel to the Guarantor acceptable to the Administrative Agent, and the Corporate Counsel of the Guarantor, in substantially the form of Exhibits B and C hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request,
(e) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) The representations and warranties contained in Section 5 below are correct on and as of the date of such certificate as though made on and as of such date; and
(ii) each Guarantor certifying the names After giving effect to this Amendment, no event has occurred and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementcontinuing that constitutes a Default.
Appears in 1 contract
Sources: Credit Agreement (Maxtor Corp)
Conditions of Effectiveness. This Amendment The obligations of the Lenders to make Loans (or to purchase participations in Swingline Loans) and of the Issuing Bank to issue Letters of Credit hereunder shall become effective as of on the first date (the “Amendment Effective Date”) on which, and only if, which each of the following conditions precedent shall have been satisfied:is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received (i) counterparts from each party hereto a counterpart of this Amendment executed by the Borrower and each Lender or, as to any Agreement signed on behalf of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Dateparty.
(b) The Administrative Agent shall have received reasonably satisfactory written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of New York counsel for the Credit Parties, covering such matters as the Required Lenders shall reasonably request. The Credit Parties hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of each Credit Party, stating that:
(i) the representations and warranties set forth contained in each Article III of the Loan Documents shall be this Agreement are correct in all material respects on and as of the Amendment Effective Closing Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).; and
(cii) No no event shall have has occurred and be continuing, or shall result from the effectiveness of this Amendment, is continuing that constitutes a Default.
(de) All of the The Administrative Agent shall have received all fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) other amounts due and payable on or prior to the Amendment Effective Date shall have been Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) by the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebyhereunder.
(f) A certificate The Borrower shall have repaid all obligations owing and outstanding under the Existing Agreement, and terminated the commitments thereunder.
(g) All governmental and material third party approvals necessary in connection with the execution, delivery and performance of this Agreement shall have been obtained and be in full force and effect. The Administrative Agent shall notify the Borrower and the Lenders of the Secretary or an Assistant Secretary Closing Date, and such notice shall be conclusive and binding. Without limiting the generality of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of the third paragraph of Article IX, for purposes of determining compliance with the conditions specified in this Section 9.01 of 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Credit AgreementAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Amendment No. 4 shall become effective as of the date first above written (but in no event shall such date occur after January 2, 2003) (the “Amendment Effective Date”"AMENDMENT NO. 4 EFFECTIVE DATE") on whichwhen, and only if, each of the following conditions precedent shall have been satisfied:when,
(a) The the Administrative Agent shall have received the following in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender Party:
(i) counterparts of this Amendment No. 4 executed by the Borrower undersigned and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, Required Lender;
(ii) the consent Consent attached hereto (the “Consent”) hereto, executed by each of the Guarantors, and Subsidiary Guarantor;
(iii) a Note payable to certificate of the order Domestic Borrower and each Domestic Subsidiary Guarantor, signed on behalf of each Lender requesting the same in such Loan Party by a principal amount equal to such Lender’s respective Revolving Credit Commitment as of Responsible Officer, dated the Amendment No. 4 Effective Date.
Date (b) The representations and warranties set forth the statements made in each of the Loan Documents which certificate shall be correct in all material respects true on and as of the Amendment No. 4 Effective Date), certifying as to
(A) an attached true, complete and correct copy of a certificate of the Secretary of State of the jurisdiction of each such Loan Party, dated reasonably near the Amendment No. 4 Effective Date, before certifying (A) as to a true and after giving effect to this Amendment, as though made on and as correct copy of the charter of such date Loan Party and each amendment thereto on file in such Secretary of State's Office and (except for any B) that such representation amendments are the only amendments to such Loan Party's charter on file in such Secretary of State's Office,
(B) an attached, true, correct and warranty that, by its terms, refers to a specific date other than complete copy of the Amendment Effective Date, in which case as bylaws of such specific date).
(cLoan Party as in effect on the date on which the resolutions referred to in Section 2(a)(iii)(C) No event shall have occurred were adopted and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment No. 4 Effective Date shall have been paid in full.Date,
(eC) Certified copies an attached, true, correct and complete copy of (i) the resolutions of the Board of DirectorsDirectors of such Loan Party authorizing the execution, general partner or managing member, as applicable, delivery and performance by such Loan Party of each of the foregoing Loan Documents to which it is a party,
(AD) the Borrower approving this Amendment due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation, and the matters contemplated hereby and thereby and (B) each Guarantor approving absence of any proceeding for the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.dissolution or liquidation of such Loan Party,
(fE) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor Loan Party authorized to sign each Loan Document to which it is or is to be a party,
(F) the Consenttruth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Amendment No. The effectiveness 4 Effective Date, and
(G) the absence of any event occurring and continuing, or resulting from the making of such Term B Advance, that constitutes a Default;
(iv) a Notice of Borrowing relating to such Term B Advance;
(v) a favorable opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel for the Loan Parties as ▇▇ ▇▇▇ valid ▇▇▇▇tence and good standing of the New York and Delaware Loan Parties, their due power and authority to execute this Amendment is conditioned upon No. 4, and this Amendment No. 4 representing the accuracy legal, valid, and binding obligation of the factual matters described herein. This Amendment is Domestic Borrower (it being acknowledged and agreed that these opinions will be subject to customary assumptions and limitations), and as to such additional matters as may arise and be reasonably requested by the provisions Administrative Agent;
(vi) 6-year pro forma consolidated and consolidating projections, including pro forma income statements, cash flow statements and balance sheets, as well as a balance sheet as of Section 9.01 September 30, 2002, after giving pro forma effect to Amendment No. 4; and
(vii) a certificate from the chief financial officer of the Credit AgreementDomestic Borrower with respect to the solvency (on a consolidated basis) of the Domestic Borrower and its Subsidiaries both immediately before and immediately after the consummation of the transactions to occur with the making of such Term B Advance; and
(b) the following events shall have occurred:
(i) the conditions set forth in Section 2(a) above have been satisfied;
(ii) the Total Term B Commitment shall be equal to or greater than $30 million;
(iii) on the date of such Term B Advance, after giving effect to Amendment No. 4:
(A) Consolidated EBITDA of the Domestic Borrower for the twelve month period ended September 30, 2002 calculated on a pro forma basis after giving effect to such Term B Advance, shall not be less than $41 million;
(B) the ratio of Consolidated total Debt for Borrowed Money of the Domestic Borrower and its Subsidiaries as of September 30, 2002, to Consolidated EBITDA ended September 30, 2002, calculated on a pro forma basis after giving effect to such Term B Advance, shall be equal to or less than 5.75:1;
(C) the ratio of the sum of (1) Consolidated total Debt for Borrowed Money of the Domestic Borrower and its Subsidiaries less (2) Subordinated Debt, in each case as of September 30, 2002, to Consolidated EBITDA ended September 30, 2002, calculated on a pro forma basis after giving effect to such Term B Advance, shall be equal to or less than 2.15:1;
(D) neither Moody's nor Standard & Poor's shall have lowered it▇ ▇▇▇▇▇t rating or outlook for the Facility, or any other obligations of the Domestic Borrower, from ratings in effect on September 30, 2002;
(iv) there shall not have occurred or become known any Material Adverse Change since December 31, 2001; and
(v) the payment to the Administrative Agent of all accrued and unpaid fees, costs and expenses of the Administrative Agent including, without limitation, the accrued and unpaid fees and expenses of counsel to the Administrative Agent and Lead Arranger, and the fees, costs and expenses payable pursuant to Section 4 below.
Appears in 1 contract
Sources: Credit Agreement (Sovereign Specialty Chemicals Inc)
Conditions of Effectiveness. This Amendment (a) The amendments to the Loan Agreement and the Guaranty set forth herein (other than Section 1(b)) shall become effective on the first date on which the Agent shall have received counterparts hereof executed by the Borrower, CSC, the Lender and the Assignee Lenders or, as of to any Lender or Assignee Lender, evidence satisfactory to the Agent that such Lender or Assignee Lender, as applicable, has executed this Amendment.
(a) Section 3 and the amendments to the Loan Agreement set forth in Section 1(b) shall become effective on the first date (the “Amendment Guarantor Effective Date”) on which, and only if, each of which the following conditions precedent are satisfied:
(i) The Agent shall have been satisfiedreceived the following:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment hereof executed by the Borrower Borrower, CSC, the Lender and each Lender the Assignee Lenders or, as to any of the LendersLender or Assignee Lender, advice evidence satisfactory to the Administrative Agent that such Lender or Assignee Lender, as applicable, has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.;
(b) The representations an Assumption Agreement executed by the Borrower, CSC and warranties set forth ▇▇▇▇▇▇▇ substantially in each the form of Annex I hereto relating to ▇▇▇▇▇▇▇’▇ assumption of the Obligations of CSC under the Loan Documents shall be correct in all material respects on Agreement and as of the Amendment Effective Date, before and after giving effect each other Related Agreement to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to which CSC is a specific date other than the Amendment Effective Date, in which case as of such specific date).party;
(c) No event shall have occurred and be continuinga certificate of an authorized officer of ▇▇▇▇▇▇▇, or shall result from dated the effectiveness of this AmendmentGuarantor Effective Date, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor ▇▇▇▇▇▇▇ authorized to sign the Consent. The effectiveness Assumption Agreement and any other documents to be delivered by ▇▇▇▇▇▇▇ in connection with the Assumption Agreement, (B) attaching and certifying the correctness and completeness of the copies of ▇▇▇▇▇▇▇’▇ Certificate of Incorporation and Bylaws, (C) attaching and certifying the correctness and completeness of copies of the resolutions of the Board of Directors or similar governing body of ▇▇▇▇▇▇▇, approving the execution, delivery and performance of the Assumption Agreement and the other Related Agreements to which ▇▇▇▇▇▇▇ is to be a party and (D) attaching a good standing certificate of ▇▇▇▇▇▇▇ from the state of its organization, dated a recent date prior to the Guarantor Effective Date;
(d) no later than five (5) Business Days in advance of the Guarantor Effective Date, all documentation and other information reasonably requested with respect to ▇▇▇▇▇▇▇ in writing by any Lender or Assignee Lender at least ten (10) Business Days in advance of the Guarantor Effective Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; #89281785v11
(e) a certificate of an authorized officer of ▇▇▇▇▇▇▇, dated the Guarantor Effective Date, stating that the representations and warranties of ▇▇▇▇▇▇▇ (after giving effect to the this Amendment is conditioned upon the accuracy including Section 1(b) hereof) contained in Section 10 of the factual matters described herein. This Amendment is subject Guaranty are correct;
(f) a favorable legal opinion of in house legal counsel of ▇▇▇▇▇▇▇, dated the Guarantor Effective Date; and
(g) promptly upon filing with the applicable jurisdiction, any certificate of amendment or articles of conversion of ▇▇▇▇▇▇▇ filed on or after the effective date of the amendments to the provisions Loan Agreement and the Guaranty in accordance with Section 2(a) hereof and prior to the Guarantor Effective Date.
(ii) The Merger shall have been consummated on or prior to, or shall be consummated substantially concurrently with, the Guarantor Effective Date. Notwithstanding the foregoing and Section 2(b) hereof, for the avoidance of Section 9.01 of doubt, to the Credit Agreementextent the Merger is not consummated on, prior to, or substantially concurrently with the Guarantor Effective Date, the Guarantor Effective Date shall not occur.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Computer Sciences Corp)
Conditions of Effectiveness. (a) This Amendment shall become effective as of the date first date (set forth above when and if the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) from the Required Lenders, the Fronting Bank and the Borrower signed counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.; and
(b) The Section 2 of this Amendment shall become effective on the date (the "Amendment Date") when and if the Administrative Agent shall have received:
(i) a certificate of a Secretary or Assistant Secretary of the Borrower, dated the Amendment Date, certifying:
(A) that attached thereto is a copy of the certificate of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of Texas, which has not been amended since the date of the last amendment thereto shown on an attached certificate of good standing of the Borrower as of a recent date from such Secretary of State;
(B) that attached thereto is a true and complete copy of the bylaws of the Borrower as in effect on the Amendment Date and at all times since a date prior to the date of the resolutions described in (C) below;
(C) that attached thereto are true and complete copies of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution and delivery by the Borrower of this Amendment, the Extensions of Credit to be made under the Credit Agreement, as amended, and the performance by the Borrower of all of its obligations under the Credit Agreement, as amended by this Amendment (the "Amended Credit Agreement"), and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and
(D) as to the incumbency and specimen signature of each officer executing this Amendment and any other document delivered in connection herewith on behalf of the Borrower;
(E) that no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required in connection with the execution, delivery and performance by the Borrower of this Amendment or the Amended Credit Agreement;
(F) that the representations and warranties set forth in each Article III of the Loan Documents shall be Credit Agreement are true and correct in all material respects on and respect as of the Amendment Effective Date; and
(G) that no Event of Default or Default under the Credit Agreement, before and after giving effect to as amended by this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have has occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable is continuing on the Amendment Effective Date shall have been paid in full.Date;
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action a certificate of another duly authorized officer of the Borrower as to the incumbency and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate specimen signature of the Secretary or an Assistant Secretary of executing the certificate pursuant to (i) the Borrower certifying the names above; and true signatures (iii favorable legal opinions of the officers of the Borrower authorized to sign this Amendment following, in form and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject substance satisfactory to the provisions of Section 9.01 of Administrative Agent:
(A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Credit AgreementBorrower;
(B) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to the Borrower; and
(C) King & Spalding LLP, special New York counsel to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Txu Corp /Tx/)
Conditions of Effectiveness. This Amendment shall Assignment and Amendment, including the amendments set forth in Sections 2 and 3 and the assignment and assumption set forth in Section 4, will become effective as on the date on which each of the first date following conditions precedent are satisfied or waived (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:):
(a) The Parent, the Borrower, each other Credit Party and the Lenders shall have delivered to the Administrative Agent duly executed counterparts of this Assignment and Amendment.
(b) The Administrative Agent shall have received a certificate executed by an Authorized Officer of each of the Borrower and the Parent stating that before and after giving effect to this Assignment and Amendment (i) counterparts the representations and warranties of this Amendment executed by the Parent, the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties Guarantors set forth in each of the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects respects, or, to the extent that a particular representation or warranty is qualified as to materiality, such representation or warranty shall be true and correct, in each case, on and as of the Amendment Effective Date, before except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date, such representations and warranties shall continue to be true and correct as of such specified earlier date; and (ii) no Default or Event of Default exists.
(c) The Administrative Agent shall have received a certificate dated as of the Amendment Effective Date signed by an Authorized Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower approving or consenting to the execution, delivery and performance of this Assignment and Amendment.
(d) With respect to each New Lender that requests a promissory note through the Administrative Agent no later than two Business Days prior to the Amendment Effective Date, a promissory note shall have been delivered by the Borrower to such New Lender through the Administrative Agent.
(e) The Borrower shall have paid to the Administrative Agent, for the account of each Increasing Lender, a commitment increase fee (the “Fee”) in an amount equal to the product of (A) 0.375% multiplied by (B) the result of (x) such Increasing Lender’s Commitment Amount immediately after giving effect to this Assignment and Amendment minus (y) the greater of (1) such Increasing Lender’s Commitment Amount immediately prior to giving effect to this Assignment and Amendment (if any) and (2) such Increasing Lender’s Commitment Amount on the Effective Date of the Credit Agreement (if any), in immediately available funds. Each Non-Increasing Lender hereby acknowledges and agrees that it is not entitled to any Fees in connection with this Assignment and Amendment. Branch Banking and Trust Company, as though made a Lender, acknowledges and agrees that in the event it increases its Commitment Amount in connection with any future increase in the Aggregate Commitment Amount, its Commitment Amount, the Borrowing Base or otherwise under the Credit Agreement, as applicable, it hereby waives any right to receive any fees, including the Fees, on and as any increase of such date its Commitment Amount until its Commitment Amount exceeds $27,000,000 (except for any such representation and warranty that, by which was its terms, refers to a specific date other than Commitment Amount on the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All Date of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and Credit Agreement). The Fees shall be payable in full on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby fully earned and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebynon-refundable when paid.
(f) A certificate The Borrower shall have made payment of all fees and expenses then due and payable under the Secretary or an Assistant Secretary of (i) the Borrower certifying the names Credit Agreement, including any fees and true signatures of the officers of the Borrower authorized expenses then due and payable in connection with this Assignment and Amendment pursuant to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 9.03 of the Credit Agreement, in the case of expenses to the extent invoiced at least three Business Days prior to the Amendment Effective Date (except as otherwise reasonably agreed by the Borrower).
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as The obligations of Administrative Agent and the first date (Lenders to amend the “Amendment Effective Date”) on which, and only if, each Credit Agreement are subject to the fulfillment of the following conditions precedent shall have been satisfiedprecedent:
(a) The Borrower shall have delivered to Administrative Agent shall have received (i) multiple counterparts of this Amendment Amendment, as requested by Administrative Agent, duly executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.;
(b) The representations Borrower shall have delivered (i) copies of resolutions of Borrower and warranties set forth in each of Guarantor authorizing the Loan Documents shall be correct in all material respects on and transactions contemplated hereby, certified as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as date hereof by a Responsible Officer of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and each; (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers or such Person authorized to execute, deliver and perform, as applicable, this Amendment, the Notes and all other Loan Documents to be delivered by it hereunder; and (iii) the Organization Documents of Borrower and each Guarantor as in effect on the date hereof;
(c) Borrower shall have delivered a current certificate for each of Borrower and Guarantors (i) from its state of incorporation, evidencing its proper registration as a corporation, and (ii) from each state wherein such Person is qualified under the laws of such Guarantor authorized jurisdiction wherein its ownership, lease or operation of its Property or the conduct of its business requires such registration or qualification and where the failure to sign be so qualified would reasonably be expected to result in a Material Adverse Effect;
(d) Borrower shall have delivered an opinion of counsel for Borrower and the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual Guarantors as to matters described herein. This Amendment is subject to the provisions of Section 9.01 in Sections 6.01, 6.02, 6.03, 6.04 and 6.16 of the Credit Agreement, and such other matters as Administrative Agent may request, in the form satisfactory to Administrative Agent dated as of the date hereof;
(e) Administrative Agent shall have received evidence that Borrower has entered into an amendment to the Senior Credit Agreement on terms and conditions satisfactory to Administrative Agent;
(f) Borrower and, as applicable, each Subsidiary shall have evidence of Marketable Title on at least eighty percent (80%) of the net present value of Borrower’s and each Subsidiary’s Borrowing Base Properties subject to no other liens, other than Permitted Liens, as evidenced by opinions of title or other title information reasonably satisfactory to Administrative Agent and the Lenders;
(g) Administrative Agent and the Lenders shall be satisfied with the condition of Borrower’s and its Subsidiaries’ Borrowing Base Properties and each Person’s compliance with Environmental Laws;
(h) Borrower shall have delivered to Administrative Agent insurance certificates in form and substance reasonably satisfactory to Administrative Agent, from Borrower’s insurance carriers reflecting the current insurance policies required under Section 7.06 of the Credit Agreement including any necessary endorsements to reflect Administrative Agent as “loss payee” or “additional insured,” as applicable, for the ratable benefit of the Lenders;
(i) Borrower shall have delivered certifications from Borrower and any Subsidiary party to the Security Documents that no “Building” (as defined in applicable flood insurance regulations) is included in the Mortgaged Property;
(j) Borrower shall have delivered such other approvals, opinions, documents or materials as Administrative Agent or any Lender may reasonably request, including, without limitation, any new Mortgages or amendments or supplements to existing Mortgages, financing statements or amendments to financing statements;
(k) Borrower shall have made payment of all fees and expenses due and owing under the Credit Agreement and under any separate fee agreement entered into by the parties pursuant to Section 2.05(a) of the Credit Agreement including such fees and expenses specified in Section 7 hereof and payment of all outstanding invoices of ▇▇▇▇▇ ▇▇▇▇▇ LLP;
(l) no Material Adverse Effect shall have occurred; and
(m) no Default or Event of Default shall have occurred.
Appears in 1 contract
Conditions of Effectiveness. This Amendment Waiver and Eighth Amendatory Agreement shall be operative as of the date hereof but shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (ix) full and final payment of a $550,000 fee (which shall be in substitution for, and in full satisfaction of, payment of the $400,000 fee referenced in Section 2.06(c) of the Credit Agreement); (y) counterparts of this Amendment Waiver and Eighth Amendatory Agreement executed by the Borrower and each Lender the Lenders or, as to any of the said Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, Waiver and Eighth Amendatory Agreement and (iiz) the consent attached hereto (the “Consent”) executed by each all of the Guarantorsfollowing documents, each document (unless otherwise indicated) being dated the date hereof, in form and substance satisfactory to the Agent:
(a) a certificate of the Secretary or an Assistant Secretary of the Borrower and the Guarantor certifying the names and true signatures of their respective officers authorized to sign this Waiver and Eighth Amendatory Agreement, and (iii) a Note payable the other documents to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.be delivered hereunder;
(b) The a certificate signed by a duly authorized officer of the Borrower stating that:
(i) the representations and warranties of the Borrower as set forth in each Article IV of the Credit Agreement and in any documents delivered therewith, including the Loan Documents shall be Documents, are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, date of such certificate as though made on and as of such date (except for any insofar as such representation representations and warranty that, by its terms, refers warranties relate expressly to an earlier date or are based on the accuracy of schedules prepared as of a specific prior date),
(ii) the representations and warranties contained in Section 4 hereof are correct on and as of the date other than the Amendment Effective Date, in which case of such certificate as though made on and as of such specific date)., and
(iii) after giving effect to this Waiver and Eighth Amendatory Agreement, no Default or Event of Default has occurred and is continuing;
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower and of the Guarantor approving this Amendment Waiver and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby Eighth Amendatory Agreement and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Waiver and Eighth Amendatory Agreement and the matters contemplated hereby and thereby.hereby;
(fd) A certificate a favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Borrower and the Guarantor, in a form reasonably acceptable to the Agent and Lenders; and
(e) an amendment to the existing deeds of trust in favor of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject Agent, together with endorsements to the provisions title insurance policies in force with respect to such deeds of Section 9.01 of the Credit Agreementtrust.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of the first date (the “Amendment date on which this amendment becomes effective is referred to herein as, the "Effective Date”") on whichand the obligation of Servicer to make lines of credit available to franchisees of Sponsor under the Loan Facility Agreement, as amended hereby, and only ifthe obligation of each Participant to purchase its participation therein, is subject to receipt by Servicer of each of the following conditions precedent shall have been satisfiedin form and substance satisfactory to Servicer and each of the Participants:
(a) The Administrative Agent shall have received (i) counterparts a fee in the amount of this Amendment executed by $45,000 in immediately available funds, which the Borrower and each Lender or, as Sponsor agrees to any of pay on the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.date hereof;
(b) The representations and warranties set forth in from each of the Loan Documents shall be correct in all material respects on and as parties hereto a duly executed counterpart of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).;
(c) No event shall have occurred and be continuinga certificate of Sponsor, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All dated as of the fees and expenses date hereof, signed by the Secretary or Assistant Secretary of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of Sponsor, (i) the resolutions of the Board of Directors, general partner or managing member, certifying as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower Sponsor authorized to sign execute and deliver this Amendment, (ii) certifying that Sponsor's articles of incorporation and bylaws delivered to Servicer on November 3, 1999 have not been amended or modified and are in full force and effect as of the date hereof, and (iii) certifying a true and correct copy of the action taken by the Board of Directors or the Sponsor authorizing the Sponsor's execution, delivery and performance of this Amendment and the certificates referred to herein;
(iid) each Guarantor certifying the names and true signatures a certificate of the officers Secretary of State of the State of Georgia as to the existence of the Sponsor as a Georgia corporation;
(e) a favorable written opinion of Kilp▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, counsel for Sponsor and Guarantors, in form satisfactory to Servicer and each Participant and covering such Guarantor authorized matters relating to sign the Consent. The effectiveness of transactions contemplated by this Amendment is conditioned upon as Servicer may reasonably request;
(f) a duly executed amendment to the accuracy Servicing Agreement; and
(g) in addition, each of the factual matters described herein. This Amendment is subject to Participants shall have received a duly executed Participation Certificate from the provisions of Section 9.01 of the Credit AgreementServicer.
Appears in 1 contract
Conditions of Effectiveness. This Amendment Agreement shall become effective as when (i) the Administrative Agent shall have received counterparts of this Agreement executed by the first date Borrower and all Lenders party hereto, (ii) the “Amendment Effective Date”Administrative Agent shall have received the fees provided to be paid pursuant to the Fee Letter and (iii) on which, and only if, the Administrative Agent shall have received each of the following items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance satisfactory to the Administrative Agent, to be fully and properly executed by all parties thereto, and (except for the Notes) to be in sufficient copies for each Lender), and the conditions precedent specified below shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts A Facility A Note payable to the order of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Facility A Note payable to the order of each Facility A Lender requesting that shall have requested a Facility A Note in accordance with this Agreement; a Facility B Revolver Note and a Facility B Term Note payable to the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as order of the Amendment Effective DateAdministrative Agent and a Facility B Revolver Note and Facility B Term Note payable to the order of each of the Facility B Lenders that shall have requested such Notes in accordance with this Agreement.
(b) The representations and warranties set forth in From each Subsidiary of the Loan Documents shall be correct Borrower (except for the Mortgage Banking Subsidiaries and the Subsidiaries listed in all material respects on Schedule VII hereto), a Guaranty executed and delivered as of the Amendment Effective DateClosing Date or, before if such Subsidiary has heretofore executed and after giving effect delivered a Guaranty pursuant to this Amendmentthe Original Credit Agreement or the Existing Credit Agreement, as though made on and as of a written instrument executed by such date (except for any Guarantor ratifying such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date)Guaranties.
(c) No event shall have occurred The favorable written opinions addressed to the Lenders, and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees in form and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for substance satisfactory to the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of , from (i) Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇, LLP (counsel to the resolutions of the Board of DirectorsBorrower), general partner or managing member, as applicable, of with respect to (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving any other Loan Parties (other than those (if any) that are Subsidiaries of New U.S. Home) that are incorporated or formed under Florida, Delaware or New York law and that deliver a Guaranty on the Consent Closing Date, which opinion shall be substantially in the form delivered pursuant to the Existing Credit Agreement but which shall be limited to this Agreement and the matters contemplated hereby Notes and thereby Guaranties delivered on the Closing Date hereunder and (ii) all documents evidencing other necessary corporate action and governmental approvals(if applicable) from ▇▇▇▇▇▇ ▇▇▇▇ (Executive Director- Legal, if any, of New U.S. Home) substantially in the form delivered pursuant to the Existing Credit Agreement but only with respect to this Amendment, the Consent Subsidiaries of New U.S. Home (if any) that deliver Guaranties on the Closing Date hereunder. The Borrower hereby instructs such counsel to prepare their opinions and deliver such opinions to the matters contemplated hereby and thereby.
(f) A certificate Lenders for the benefit of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names Lenders, and true signatures of the officers of the Borrower authorized such opinions shall contain a statement to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementeffect.
Appears in 1 contract
Sources: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. This Amendment The obligations of the Lenders to make Loans (or to purchase participations in Swingline Loans) and of the Issuing Banks to issue Letters of Credit hereunder shall become effective as of on the first date (the “Amendment Effective Date”) on which, and only if, which each of the following conditions precedent shall have been satisfied:is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received (i) counterparts from each party hereto a counterpart of this Amendment Agreement signed on behalf of such party (which, subject to Section 10.06(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Datesignature page).
(b) The Administrative Agent shall have received reasonably satisfactory written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of New York counsel for the Credit Parties, covering such matters as the Required Lenders shall reasonably request. The Credit Parties hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of each Credit Party, stating that:
(i) the representations and warranties set forth contained in each Article III of the Loan Documents shall be this Agreement are correct in all material respects on and as of the Amendment Effective Closing Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).; and
(cii) No no event shall have has occurred and be continuing, or shall result from the effectiveness of this Amendment, is continuing that constitutes a Default.
(de) All of the The Administrative Agent shall have received all fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) other amounts due and payable on or prior to the Amendment Effective Date shall have been Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) by the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebyhereunder.
(f) A certificate All governmental and material third party approvals necessary in connection with the execution, delivery and performance of the Secretary or an Assistant Secretary of this Agreement shall have been obtained and be in full force and effect.
(i) The Administrative Agent shall have received, at least three days prior to the Closing Date, all documentation and other information regarding the Borrower certifying requested in connection with applicable "know your customer" and anti-money FOURTH AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT – Page 71 laundering rules and regulations, including the names and true signatures of Patriot Act, to the officers extent requested in writing of the Borrower authorized at least 10 days prior to sign this Amendment the Closing Date and (ii) each Guarantor certifying to the names extent the Borrower qualifies as a "legal entity customer" under the Beneficial Ownership Regulation, at least three days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and true signatures delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied). The Administrative Agent shall notify the Borrower and the Lenders of the officers Closing Date, and such notice shall be conclusive and binding. Without limiting the generality of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of the third paragraph of Article IX, for purposes of determining compliance with the conditions specified in this Section 9.01 of 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Credit AgreementAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This First Amendment shall become effective as of the first date (such date being referred to as the “First Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received the following, each dated as of the First Amendment Effective Date (unless otherwise specified), and in such number of copies as the Administrative Agent shall have requested:
(i) Fully executed counterparts of this First Amendment executed by from the Borrower Borrower, each Lender, and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, Agent.
(ii) the consent attached hereto (the “Consent”) executed by each Copies of the Guarantorsarticles or certificate of incorporation of the Borrower, together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdictions of incorporation.
(iii) a Note payable to Copies, certified by the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as Secretary or Assistant Secretary of the Amendment Effective Date.
(b) The representations Borrower, of its by-laws and warranties set forth in each of the Loan Documents shall be correct in all material respects on its Board of Directors’ resolutions and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as resolutions or actions of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of body authorizing (i) the resolutions execution of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this First Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect borrowings hereunder by the Borrower in an aggregate amount up to this Amendment, the Consent and the matters contemplated hereby and thereby$450,000,000.
(fiv) A certificate of An incumbency certificate, executed by the Secretary or an Assistant Secretary of (i) the Borrower certifying Borrower, which shall identify by name and title and bear the names and true signatures of the Authorized Officers and any other officers of the Borrower authorized to sign this Amendment the Loan Documents, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(v) A certificate, signed by the chief financial officer of the Borrower, stating that the conditions specified in Section 4.2(b) and (iic) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy Credit Agreement have been satisfied.
(vi) A written opinion of the factual matters described herein. This Amendment is subject Borrower’s counsel, addressed to the provisions of Section 9.01 Lenders substantially in the form delivered at the initial closing of the Credit Agreement.
(vii) Any Notes requested by a Lender pursuant to Section 2.11 of the Credit Agreement payable to the order of each such requesting Lender.
(viii) Evidence satisfactory to the Administrative Agent of any required Governmental Approvals or consents regarding this First Amendment.
(b) The Borrower shall have paid (i) to ▇▇▇▇▇ Fargo Securities, the Administrative Agent and BTMU, for their own respective accounts, on the First Amendment Effective Date, the fees required to be paid under the First Amendment Fee Letter, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Administrative Fee Letter, (iii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent and the Lenders required to be paid on or prior to the First Amendment Effective Date (including reasonable fees and expenses of counsel to the Administrative Agent) in connection with this First Amendment and (iv) all accrued and unpaid fees and interest due under the Credit Agreement and owing as of the First Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (WGL Holdings Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the first date hereof (the “Amendment "Effective Date”") if on which, and only if, each of or before the following conditions precedent shall have been satisfied:
(a) The Administrative date hereof the Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender the Requisite Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, ; (ii) evidence that (a) all fees due under the consent attached hereto letter dated March 10, 1999 between the Agent and the Borrower have been paid, (b) the “Consent”) executed by each Borrower has paid to the Agent, for the account of the GuarantorsLenders executing and delivering this Amendment on or prior to the date hereof, a consent fee due under the letter dated March 11, 1999 between the Agent and the Borrower, which amount will be distributed ratably to such Lenders as provided in such letter and (c) the Borrower has paid all fees due under Section 8.04 of the Credit Agreement and (iii) a Note payable all of the following documents, each such document in form and substance satisfactory to the order of Agent and in sufficient copies for each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.:
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(ea) Certified copies of (i) the resolutions of (A) the Finance Committee of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) the Board of Directors of each Guarantor approving other Loan Party evidencing approval of the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, Amendment and the Consent and the matters contemplated hereby and thereby.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower and each other Loan Party certifying the names and true signatures of the officers of the Borrower and such other Loan Party authorized to sign this Amendment and the Consent and the other documents to be delivered hereunder and thereunder.
(c) Counterparts of the Consent appended hereto (the "Consent"), executed by each of the Loan Parties (other than the Borrower).
(d) A certificate from an Authorized Officer of the Borrower that (i) the representations and warranties contained in Section 4 of this Amendment, in Article IV of the Credit Agreement and in Article III of the Pledge and Security Agreements are correct on and as of such date as though made on and as of such date and (ii) each Guarantor certifying no event has occurred and is continuing, or would result from such extension of credit or from the names and true signatures application of the officers proceeds therefrom, which constitutes an Event of Default or a Potential Default.
(e) A favorable opinion of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Borrower, substantially in the form of Exhibit A hereto and as to such Guarantor authorized to sign other matters as any Lender through the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementAgent may reasonably request.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Integrated Health Services Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each all of the following conditions precedent shall have been satisfiedoccurred:
(a) The the Company, the Subsidiary Borrower and the Required Lenders shall have executed a counterpart hereof and delivered the same to the Administrative Agent or, in the case of any Lender as to which an executed counterpart hereof shall not have been so delivered, the Administrative Agent shall have received written confirmation by telecopy or other similar writing from such Lender of execution of a counterpart hereof by such Lender;
(ib) counterparts the Company has terminated all commitments and paid in full all amounts outstanding under that certain $250,000,000 Credit Agreement dated as of this Amendment February 22, 2006 among the Company, the lenders party thereto and Wachovia Bank, National Association, as administrative agent;
(c) if requested by any Lender, a new Committed Note and a Competitive Note executed by the Borrower Company and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.;
(d) All a certificate of an officer and of the fees and expenses secretary or an assistant secretary of the Administrative Agent Delegate, certifying, inter alia (including the reasonable fees A) true and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified complete copies of (i) each of the limited liability company agreement of the Delegate, the certificate of incorporation, as amended and in effect, of the General Partner, the partnership agreements, each as amended and in effect, of the Borrowers, the bylaws, as amended and in effect, of the General Partner and the resolutions of adopted by the Board of DirectorsDirectors of the Delegate (1) authorizing the execution, general partner or managing memberdelivery and performance by each Borrower of this Amendment and, in the case of the Company, the Borrowings to be made and the Letters of Credit to be issued under the Credit Agreement, as applicableamended hereby, (2) approving the forms of (A) the Borrower approving this Amendment and (3) authorizing officers of the matters contemplated hereby Delegate to execute and thereby and deliver this Amendment, (B) each Guarantor approving the Consent incumbency and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true specimen signatures of the officers of the Borrower authorized to sign Delegate executing this Amendment and (iiC) (1) that the representations and warranties made by such Borrower in each Guarantor certifying Loan Document to which such Borrower is a party and which will be delivered at or prior to the names initial Borrowing Date are true and true signatures correct in all material respects, (2) the absence of any proceedings for the dissolution or liquidation of such Borrower and (3) the absence of the officers occurrence and continuance of such Guarantor authorized any Default or Event of Default;
(e) a favorable, signed opinion addressed to sign the Consent. The effectiveness of this Amendment is conditioned Administrative Agent and the Lenders from Bracewell & Giuliani LLP, counsel to the Borrowers, given upon the accuracy ▇▇▇▇▇▇▇ ▇nst▇▇▇▇▇▇▇ of the factual matters described herein. This Amendment is subject Borrowers; and
(f) certificates of appropriate public officials as to the provisions existence, good standing and qualification to do business as a foreign entity of Section 9.01 each Borrower, the General Partner and the Delegate in the States of the Credit AgreementTexas and Delaware.
Appears in 1 contract
Sources: Credit Agreement (Kinder Morgan Energy Partners L P)
Conditions of Effectiveness. This Amendment shall become effective on and as of the first date (such date, the “Amendment No. 1 Effective Date”) on which, and only if, each upon which all of the following conditions precedent set forth in this Section 5 shall have been satisfied:
(a) The Substantially concurrent with or prior to the effectiveness of this Amendment, the Amendment No. 1 Acquisition will have been consummated in accordance with the terms of the Amendment No. 1 Acquisition Agreement and all conditions precedent to the consummation of the Amendment No. 1 Acquisition, as set forth in the Amendment No. 1 Acquisition Agreement, will have been satisfied without any waiver, amendment, supplement or other modification that is materially adverse to the interests of Administrative Agent or Lenders unless Administrative Agent will have consented thereto, such consent not to be unreasonably withheld or delayed.
(b) Receipt by Administrative Agent of counterparts of this Amendment duly executed by Borrower, Lenders and Administrative Agent.
(c) Administrative Agent shall have received (i) counterparts a certificate of this Borrower, dated the Amendment No. 1 Effective Date and executed by a secretary, assistant secretary or other senior officer (as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its board of directors authorizing the execution, delivery and performance of the Credit Documents to which it is a party and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, directors or authorized signatories of Borrower authorized to sign the Credit Documents to which it is a party on the Amendment No. 1 Effective Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation of Borrower certified as of a recent date by the relevant authority of the jurisdiction of organization of Borrower and each Lender or, as to any a true and correct copy of the Lenders, advice satisfactory to the Administrative Agent its by-laws and (y) that such Lender has executed this Amendment, documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and (ii) the consent attached hereto a good standing (the “Consent”or equivalent) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment certificate as of the Amendment Effective Datea recent date for Borrower from its jurisdiction of organization.
(bd) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of On the Amendment No. 1 Effective Date, before and Date after giving effect to this Amendment, (i) the Specified Merger Agreement Representations (as though made defined below) shall be true and correct to the extent required by the last paragraph of this Section 5 and the Specified Representations (as defined below) shall be true and correct in all material respects (other than any Specified Representations which are qualified by materiality, material adverse effect or similar language, which Specified Representations shall be true and correct in all respects after giving effect to such qualification); provided, that to the extent any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the definition thereof shall be the definition of “BiteSquad Material Adverse Effect” (as defined in the Amendment No. 1 Acquisition Agreement) for purposes of the making or deemed making of such Specified Representation on and or as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment No. 1 Effective DateDate (or any date prior thereto), in which case as of such specific date).
(cii) No no event shall have occurred and be continuing, continuing or shall would result from the effectiveness of this Amendment, that constitutes a Default.
(d) All consummation of the fees and expenses Amendment No. 1 Term Loan that would constitute an Event of Default under Sections 8.1(a), (f) or (g) of the Existing Credit Agreement, (iii) since the date of the most recent balance sheet included in the Interim Financial Statements (as defined in the Amendment No. 1 Acquisition Agreement), there shall not have occurred any BiteSquad Material Adverse Effect (as defined in the Amendment No. 1 Acquisition Agreement and (iv) Administrative Agent (including the reasonable fees and expenses shall have received a certificate of counsel for the Administrative Agent) due and payable on Borrower, dated the Amendment No. 1 Effective Date shall have been paid in fulland executed by an Authorized Officer thereof, confirming that as of the Amendment No. 1 Effective Date the foregoing clauses (i), (ii) and (iii) are satisfied.
(e) Certified copies Administrative Agent shall have received a Solvency Certificate from the chief financial officer (or other financial officer with reasonably equivalent responsibilities) of (i) Borrower certifying as to the resolutions matters set forth therein dated as of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the ConsentNo. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.1
Appears in 1 contract
Conditions of Effectiveness. This Amendment Agreement shall become effective as of the first date (the “Amendment Effective Date”) on whichMay 25, 2001, when, and only ifwhen, each of before 3:00 p.m. May 25, 2001, (x) the following conditions precedent Existing Credit Agreements shall have been satisfied:
terminated and all indebtedness and other monetary obligations thereunder shall have been repaid in full by the borrowers thereunder and (ay) The the Administrative Agent shall have received (i) counterparts of this Amendment Agreement executed by the Borrower Borrowers, the Administrative Agent and each Lender orLender, as to any (ii) counterparts of the LendersGuarantee executed by the Guarantor and the Administrative Agent and (iii) all of the following documents, advice each document (unless otherwise indicated) being dated the date of receipt thereof by the Administrative Agent (which date shall be the same for all such documents except as otherwise approved by the Administrative Agent), in form and substance satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Agent:
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(ea) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the each Borrower approving or authorizing approval of the execution, delivery and performance of this Amendment Agreement and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) of all documents evidencing other necessary corporate action and governmental and regulatory approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebyAgreement.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the each Borrower certifying the names and true signatures of the officers of the such Borrower authorized to sign this Amendment Agreement and the other documents to be delivered hereunder.
(c) a certificate or certificates of an appropriate officer of the jurisdiction of organization of each Borrower, dated as of a date reasonably near the Effective Date, attaching the certificate of incorporation or other constitutive documents of such Borrower and each amendment thereto on file in his office and certifying that (i) such certificate of incorporation or other constitutive documents are true and complete copies thereof, (ii) such amendments (if any) are the only amendments to such certificate of incorporation or other constitutive documents on file in his office, (iii) such Borrower has paid all franchise taxes to the date of such certificate and (iv) such Borrower is duly incorporated and in good standing under the laws of such jurisdiction; and
(d) A favorable opinion of each Guarantor certifying the names and true signatures of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., General Counsel of the officers Borrowers, and ▇▇▇▇▇▇▇▇ Kraft & ▇▇▇▇, counsel for the Guarantor, substantially in the form of Exhibit ▇-▇, ▇-▇, and D-3, respectively, and as to such Guarantor authorized to sign other matters as any Lender and any Swing Line Bank through the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementAdministrative Agent may reasonably request.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichhereof when, and only ifwhen, each Agent, on behalf of the following conditions precedent Lenders, shall have been satisfiedreceived, in form and substance satisfactory to it, the following:
(a) The Administrative Agent shall have received (i) counterparts Counterparts of this Amendment duly executed by the Borrower and each Lender orBorrower, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, Guarantors and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.;
(b) The representations Mortgaged Property Documents described on Schedule 2A attached hereto with respect to the Mortgaged Property described on Schedule 1A attached hereto shall have been delivered to Agent at Borrower’s expense, granting Agent a first priority Lien on such Mortgaged Property, subject only to Permitted Liens. Borrower will have paid to Agent any mortgage, recording, intangible, documentary stamp or other similar taxes and warranties set forth in each charges which Agent reasonably determines to be payable as a result of the Loan Documents shall be correct in all material respects on and as of Loans or the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as recording of such date (except for Mortgaged Property Documents to any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, state or any county or municipality thereof in which case as any of such specific date).Mortgaged Properties are located, and deliver to Agent such affidavits or other information which Agent reasonably determines to be necessary in connection with payment in order to insure that the Security Deeds on such Mortgaged Property located in such state secure Borrower’s obligations with respect to the Loans;
(c) No event True and correct copies of resolutions of the Borrower and the other Loan Parties that authorize the execution, delivery and performance of this Amendment and the other documents executed in connection herewith;
(d) Legal opinions from counsel to Borrower and the others Loan Parties regarding due organization, existence, good standing, due authorization, due execution and delivery, enforceability and usury for the Borrower and the other Loan Parties, including opinions from counsel in such other states as may be requested by Agent;
(e) For the benefit of each Extending Lender, the payment by Borrower of an amendment fee equal to .25% of the Commitment of each such Lender, in immediately available funds, such fee being fully earned and non-refundable when paid;
(f) The representations and warranties made pursuant to Section 22 of this Amendment shall have occurred be true and be continuing, or shall result from correct; and
(g) Payment of all reasonable and documented expenses incurred by Agent in connection with the effectiveness execution and delivery of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the together with reasonable fees and actually incurred expenses of Agent’s counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) other post-closing matters, in each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject case to the provisions of Section 9.01 of extent invoiced at least one (1) Business Day prior to the Credit Agreementdate hereof.
Appears in 1 contract
Sources: Revolving and Term Credit Agreement (Forestar Group Inc.)
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (the “Amendment Effective Date”) on whichabove written when, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Parent shall have received $30,000,000 in gross cash proceeds from its issuance of Equity Interests, and the net cash proceeds of which shall have been contributed by Parent to the Borrower.
(b) The Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) Amendment and the consent attached hereto (the “Consent”) executed by each of the Guarantors, Guarantor and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date)Grantor.
(c) No event The Agent shall have occurred received a certificate of the Secretary or Assistant Secretary of the Borrower, in form and be continuingsubstance satisfactory to the Agent, or which certificate shall result from (i) certify as to the effectiveness incumbency and signature of the officers of the Borrower executing this Amendment, that constitutes (ii) have attached to it a Default.
(d) All true and correct copy of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of DirectorsDirectors of the Borrower, general partner or managing memberwhich resolutions shall authorize the execution, as applicable, delivery and performance of (A) the Borrower approving this Amendment and (iii) certify that, as of the matters contemplated hereby and thereby and date of such certificate (B) each Guarantor approving which shall not be earlier than the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvalsdate hereof), if anynone of such resolutions shall have been amended, with respect to this Amendmentsupplemented, the Consent and the matters contemplated hereby and therebymodified, revoked or rescinded.
(fd) A The Agent shall have received a certificate of the Secretary or an Assistant Secretary of (i) the Borrower each Guarantor and Grantor certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment Guarantors and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor Grantors authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon Consent and the accuracy other documents to be delivered hereunder.
(e) A certificate signed by a duly authorized officer of the factual matters described herein. This Amendment is subject to Borrower stating that:
(i) each of the provisions of Section 9.01 representations and warranties contained in Article V of the Credit Agreement and each other Loan Document is true and correct in all material respects on and as of the date hereof, as if made on and as of such date, except to the extent that such representations and warranties relate to a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specific date; provided, however, that references in the Credit Agreement to “this Agreement” and references in each other Loan Document to the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended hereby; and
(ii) no event has occurred and is continuing that constitutes a Default (other than the Specified Defaults).
(f) The Borrower shall have paid to the Agent, for the account of each Lender executing this Amendment within the time period required by the Agent in accordance with its Pro Rata Share, a nonrefundable fee equal to 1.00% in respect of such Lender’s Revolving Credit Commitment.
(g) The Borrower shall have paid all fees and expenses of the Agent (including all reasonable fees and out-of-pocket costs and expenses of legal counsel to the Agent) and Opportune LLP for which invoices in reasonable detail have been provided to Borrower at least two Business Days prior to the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Geokinetics Inc)
Conditions of Effectiveness. This Amendment (a) The Agreement shall become effective as of the first date (Effective Date of this Agreement upon the “Amendment Effective Date”) on which, and only if, each satisfaction of all of the following conditions precedent shall have been satisfiedconditions:
(ai) The Borrowers shall have delivered to Administrative Agent shall have received an original (ior executed faxed or electronic copy) counterparts of this Amendment executed by the Borrower and each Lender orAgreement, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) duly executed by each of the GuarantorsLoan Parties;
(ii) the receipt by Administrative Agent of the payment, in immediately available funds, of the Sixth Modification Fee that is due and payable on the date hereof;
(iii) a Note payable to each of the order representations and warranties contained in Section 6 of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment this Agreement shall be true, correct and accurate as of the Amendment Effective Datedate of this Agreement; and
(iv) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Agreement or any of the transactions arising hereunder or otherwise related hereto or referred to herein, including any actual out-of-pocket costs, expenses, charges or expenses of Administrative Agent and the reasonable fees, charges and disbursements of counsel for Administrative Agent.
(b) The representations parties hereto specifically acknowledge and warranties set forth agree that: (i) the execution and delivery of this Agreement shall not be deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the other Loan Documents. Except as expressly amended pursuant hereto, the Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed in all respects, and the Collateral described in the Loan Documents shall be correct in all material respects on and as continue to secure the Obligations. Each of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of Guarantors party hereto: (i) specifically consents to the resolutions terms of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and Agreement; (ii) reaffirms its obligations under its Guaranty and under all documents evidencing other necessary corporate action Loan Documents to which it is a party; (iii) reaffirms the waivers of each and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate every one of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names defenses to such obligations as set forth in such Guaranty and true signatures of the officers of the Borrower authorized to sign this Amendment each such other Loan Document; and (iiiv) reaffirms that its obligations under such Guaranty and each Guarantor certifying such other Loan Document are separate and distinct from the names and true signatures obligations of any other party under the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementLoan Documents.
Appears in 1 contract
Sources: Loan and Security Agreement (Live Oak Acquisition Corp)
Conditions of Effectiveness. This The effectiveness of Section 2 of this Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, each be subject to Agent’s receipt of the following documents, in form and substance satisfactory to Agent, or, as applicable, the following conditions precedent shall have been satisfiedbeing met:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by Agent, each of the Guarantors, ▇▇▇▇▇▇ and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.▇▇▇▇▇▇▇▇;
(b) The a duly executed certificate of an officer of Borrower certifying and attaching copies of (A) the certificate of incorporation, certified as of a recent date by the jurisdiction of organization of Borrower and as in effect as of the Fourth Amendment Effective Date; (B) the bylaws of Borrower, as in effect as of the Fourth Amendment Effective Date; (C) resolutions of Borrower’s board of directors evidencing approval of this Amendment, as such resolutions remain in full force and effect as of the Fourth Amendment Effective Date; and (D) a schedule setting forth the name, title and specimen signature of officers or other authorized signers on behalf of ▇▇▇▇▇▇▇▇;
(c) a certificate of good standing for Borrower from its jurisdiction of organization and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified could have a Material Adverse Effect;
(d) on the Fourth Amendment Effective Date, after giving effect to the amendment of the Existing Loan Agreement contemplated hereby: (i) the representations and warranties set forth contained in each of the Loan Documents Section 4 shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date, before and after giving effect to this Amendment, Date as though made on and as of such date date; and (except for any such representation and warranty that, by its terms, refers to a specific date other than ii) there exists no Event of Default or event that with the Amendment Effective Date, passage of time would result in which case as an Event of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.; and
(e) Certified copies of Borrower shall have paid (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (Aall invoiced costs and expenses then due in accordance with Section 5(e) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action fees, costs and governmental approvalsexpenses, if any, with respect to this Amendment, the Consent due and the matters contemplated hereby and thereby.
(f) A certificate payable as of the Secretary or an Assistant Secretary of (i) Fourth Amendment Effective Date under the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Loan Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (G1 Therapeutics, Inc.)
Conditions of Effectiveness. This Amendment (a) The Agreement shall become effective as of the first date (Amendment No. Three Effective Date upon the “Amendment Effective Date”) on which, and only if, each satisfaction of all of the following conditions precedent shall have been satisfiedconditions:
(ai) The Borrowers shall have delivered to Administrative Agent shall have received an original (ior executed faxed or electronic copy) counterparts of this Amendment executed by the Borrower and each Lender orAgreement, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) duly executed by each of the GuarantorsLoan Parties;
(ii) Parent shall have delivered to Administrative Agent an original (or executed faxed or electronic copy) of the Ratification attached to this Amendment, duly executed by Parent;
(iii) Borrowers, Guarantors and Parent shall deliver to Administrative Agent an Officers’ Certificate of the Parent, Meredian Holdings Group, Inc., a Delaware corporation, certifying as to (I) its articles of incorporation (attaching a certified articles from such state of a recent date), (II) its current bylaws (and attaching same), (III) resolutions approving this Amendment and the Ratification, as applicable, and approving and ratifying all prior Amendments (as such term is defined in the Ratification), (IV) its officers authorized to execute this Amendment or the Ratification and specimen signatures of such officers, and (iiiV) its good standing in its state incorporation (attaching a Note payable certified certificate from such state of a recent date) and confirming its good standing in each other state where it is required to be registered as a foreign corporation, except where the order failure to be so qualified would not have a Material Adverse Effect;
(iv) each of each Lender requesting the same representations and warranties contained in a principal amount equal to such Lender’s respective Revolving Credit Commitment Section 4 of this Agreement shall be true, correct and accurate as of the Amendment Effective Datedate of this Agreement; and
(v) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Agreement or any of the transactions arising hereunder or otherwise related hereto or referred to herein, including any actual out-of-pocket costs, expenses, charges or expenses of Administrative Agent and the reasonable fees, charges and disbursements of counsel for Administrative Agent.
(b) The representations parties hereto specifically acknowledge and warranties set forth agree that: (i) the execution and delivery of this Agreement shall not be deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the other Loan Documents. Except as expressly amended pursuant hereto, the Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed in all respects, and the Collateral described in the Loan Documents shall be correct in all material respects on and as continue to secure the Obligations. Each of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of Guarantors party hereto: (i) specifically consents to the resolutions terms of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and Agreement; (ii) reaffirms its obligations under its Guaranty and under all documents evidencing other necessary corporate action Loan Documents to which it is a party; (iii) reaffirms the waivers of each and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate every one of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names defenses to such obligations as set forth in such Guaranty and true signatures of the officers of the Borrower authorized to sign this Amendment each such other Loan Document; and (iiiv) reaffirms that its obligations under such Guaranty and each Guarantor certifying such other Loan Document are separate and distinct from the names and true signatures obligations of any other party under the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementLoan Documents.
Appears in 1 contract
Sources: Loan and Security Agreement (Danimer Scientific, Inc.)
Conditions of Effectiveness. This Amendment is subject to the provisions of Section 14.11 of the 2005 Credit Agreement. This Amendment shall become effective as of the date first date above written (the “Amendment Effective Date”) on which, when and only ifwhen, each of on or before the following conditions precedent Amendment Effective Date, the Administrative Agent shall have been satisfiedreceived:
(a) The Administrative Agent shall have received (i) counterparts Counterparts of this Amendment executed by the Borrower Borrower, the Additional Obligors and each Lender or, as to any of the Required Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The A certificate from a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, to the effect that all representations and warranties set forth in each of the Loan Documents shall be Borrower contained in the 2005 Credit Agreement, as amended hereby, are true, correct and complete in all material respects with the same effect as if made on and as of the Amendment Effective Date, before except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); that the Borrower is not in violation of any of the covenants contained in the 2005 Credit Agreement, as amended hereby; that, after giving effect to the transactions contemplated by this Amendment, as though made on no Default or Event of Default has occurred and as is continuing; and that each of such date the conditions to the effectiveness of this Amendment has been satisfied or waived (except for any such representation and warranty that, by its terms, refers to a specific date other than assuming satisfaction of the Amendment Effective Date, in which case as of such specific dateAdministrative Agent where not advised otherwise).
(c) No event shall have occurred A certificate of the secretary, assistant secretary or general counsel of the Borrower certifying as to the incumbency and be continuinggenuineness of the signature of each officer of the Borrower executing this Amendment and certifying that attached thereto is a true, or shall result from correct and complete copy of resolutions duly adopted by the effectiveness Board of Directors of the Borrower authorizing the borrowings contemplated under the 2005 Credit Agreement, as amended hereby, and the execution, delivery and performance of this Amendment, that constitutes a Default.
(d) All Favorable opinions of ▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel to the fees Borrower, Cravath, Swaine & ▇▇▇▇▇ LLP, special counsel to the Borrower, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Pennsylvania counsel to the Borrower, and expenses of Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, New Jersey counsel to the Borrower, addressed to the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, Lenders with respect to this Amendmentthe Borrower, the Consent Loan Documents and such other matters as the matters contemplated hereby and therebyLenders shall reasonably request.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Sources: Five Year Credit Agreement (Jones Apparel Group Inc)
Conditions of Effectiveness. This Amendment shall become effective as on the date that each of the first date following conditions is met or waived (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:):
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment(i) Holdings, (ii) the consent attached hereto (the “Consent”) executed by each of the GuarantorsBorrowers, and (iii) a Note payable solely with respect to the order consent set forth in Section 2, the Required Term A Lenders and (iv) with respect to each provision of this Amendment other than Section 2, each Revolving Lender requesting and each Term A Lender (the same Lenders described in a principal amount equal to such Lender’s respective Revolving Credit Commitment as clauses (iii) and (iv), collectively, the “Third Amendment Lenders”).
(b) As of the Amendment Effective Date.
(b) The , immediately before and after giving effect to this Amendment, the representations and warranties of each Loan Party set forth in each of the Loan Documents shall be true and correct in all material respects on and as of the Amendment Effective Date with the same effect as though made on and as of the Amendment Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on and as of the Amendment Effective Date or on such earlier date, as the case may be.
(c) As of the Amendment Effective Date, immediately before and after giving effect to this Amendment, as though made on and as no Default or Event of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event Default shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All The Third Amendment Lenders shall have received a certificate of a Responsible Officer of Holdings and each of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on Borrower Parties dated the Amendment Effective Date shall have been paid in fullDate, certifying compliance with clauses (b) and (c) above.
(e) Certified copies The Administrative Agent shall have received, in immediately available funds, payment or reimbursement of all reasonable and documented or invoiced out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document to the extent invoiced at least two Business Days prior to the Amendment Effective Date.
(f) The Administrative Agent and the Third Amendment Lenders shall have received written opinions (addressed to the Administrative Agent, the Collateral Agent and the Third Amendment Lenders and dated the Amendment Effective Date) of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties, (ii) ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Loan Parties and (iii) Loyens & Loeff, Luxembourg counsel for the Loan Parties.
(g) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Borrower Party and Holdings certified, to the extent applicable, as of a recent date by the applicable Governmental Authority; provided that such documents shall not be required to be delivered if the Borrower Parties and Holdings provide certifications that the applicable Organization Documents delivered to the Administrative Agent in connection with the Original Credit Agreement remain in full force and effect and have not been amended, modified, revoked or rescinded since the date of delivery, (ii) signature and incumbency certificates of the Responsible Officers of each Borrower Party and Holdings executing the Loan Documents to which it is a party; provided that such incumbency certificates shall not be required to be delivered if the Borrower Parties and Holdings provide certifications that the applicable incumbency certificates delivered to the Administrative Agent in connection with the Original Credit Agreement remain true and correct since the date of delivery, (iii) resolutions of the Board of DirectorsDirectors and/or similar governing bodies of each Borrower Party and Holdings approving and authorizing the execution, general partner or managing member, as applicable, delivery and performance of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate certified as of the Secretary Amendment Effective Date by its secretary, an assistant secretary or an Assistant Secretary of (i) the Borrower certifying the names a Responsible Officer as being in full force and true signatures of the officers of the Borrower authorized to sign this Amendment effect without modification or amendment and (iiiv) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject a good standing certificate (to the provisions extent such concept exists and delivery is customary in the applicable jurisdiction) from the applicable Governmental Authority of Section 9.01 each Borrower Party and Holdings’ jurisdiction of the Credit Agreementincorporation, organization or formation.
Appears in 1 contract
Sources: Third Amendment (Broadcom LTD)
Conditions of Effectiveness. This Amendment shall become effective as of the date first date above written (the “Amendment Effective Date”) on which, when and only if, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender all of the Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event Agent shall have occurred and be continuing, received on or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on before the Amendment Effective Date shall have been paid the following, each dated such date and (unless otherwise specified below) in full.form and substance satisfactory to the Agent:
(ei) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (Bor an authorized committee thereof) each Guarantor approving the Consent substance of this Amendment, and the matters contemplated hereby and thereby and (ii) of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(fii) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment Amendment.
(iii) Favorable opinions of (A) Assistant General Counsel and Secretary to the Borrower substantially in the form of Exhibit D-1 to the Credit Agreement but with such modifications as are required to address the Credit Agreement, as amended hereby and (iiB) Debevoise and P▇▇▇▇▇▇▇ LLP, counsel to the Borrower, substantially in the form of Exhibit D-2 to the Credit Agreement but with such modifications as are required to address the Credit Agreement, as amended hereby, and as to such other matters as any Lender through the Agent may reasonably request.
(c) On the Amendment Effective Date, the following statements shall be true and the Agent shall have received for the account of each Guarantor certifying the names and true signatures Lender a certificate signed by a duly authorized officer of the officers of such Guarantor authorized to sign Borrower, dated the Consent. Amendment Effective Date, stating that:
(i) The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of representations and warranties contained in Section 9.01 4.01 of the Credit Agreement, as amended hereby, are correct on and as of the Amendment Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
Appears in 1 contract
Sources: Credit Agreement (Phelps Dodge Corp)
Conditions of Effectiveness. This Amendment (a) The Amendments contained in Section 2 above shall become not be effective as of until the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have has been satisfied:
(ai) The the Administrative Agent shall have has received (i) counterparts a counterpart of this Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower and each Lender orBorrower, as to any of the LendersMLP, advice satisfactory to the other Loan Parties, the Administrative Agent that such Lender has executed this AmendmentAgent, and the Required Lenders;
(ii) the consent attached hereto (the “Consent”) executed Administrative Agent has received a certificate signed by each a Responsible Officer of the Guarantors, and Borrower certifying that (iiiA) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth contained in each Article V of the Loan Documents shall be Credit Agreement are true and correct in all material respects on and as of such date (unless such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (B) no Default or Event of Default has occurred and is continuing under the Amendment Effective Date, before and Credit Agreement as of such date (after giving effect to this Amendment), as though made on (C) since March 31, 2021, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (D) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement and as to which notice has not been given, and (E) no action, suit, investigation or proceeding is pending or, to the knowledge of such date (except for officer, threatened in any such representation and warranty thatcourt or before any arbitrator or Governmental Authority by or against the Borrower, by its termsany Guarantor, refers the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a specific date other than the Amendment Effective Date, in which case as of such specific date).Material Adverse Effect; and
(ciii) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
Borrower has paid (dA) All of the fees and expenses of an amendment fee to the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agentbenefit of each Lender party hereto) due and payable on in an aggregate amount equal to 0.10% of each such Lender’s Commitment as of the Twelfth Amendment Effective Date shall have been paid in full.
(eafter giving effect to this Amendment) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent Administrative Agent’s reasonable legal fees and expenses to the extent invoiced at least one (1) Business Day prior to the Twelfth Amendment Effective Date. The Administrative Agent agrees that it will, upon the satisfaction of the conditions contained in this Section 3, promptly provide notice to the Borrower and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate Lenders of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures occurrence of the officers of the Borrower authorized to sign this Twelfth Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementEffective Date.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfiedsatisfied or waived:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by (i) each of the Borrower Company, Kodak Canada and each Lender orGuarantor and (ii) the Required Lenders, or as to any of the Lenderssuch Lender, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The Agent shall have received a certificate of each Borrower signed on behalf of such Borrower by a Responsible Officer, dated the date of the Amendment Effective Date, certifying as to (i) the correctness of the representations and warranties set forth contained in each of the Loan Documents shall be correct in all material respects as though made on and as of the date of the Amendment Effective Date, before and after giving effect to this AmendmentAmendment and (ii) the absence of any event occurring and continuing, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than or resulting from the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(c) The Agent shall have received such documents and certificates as the Agent or its counsel may reasonably request relating to the authorization of the transactions under this Amendment and any other legal matters relating to the Loan Parties, this Amendment or the transactions contemplated hereunder, all in form and substance reasonably satisfactory to the Agent and its counsel.
(d) All Immediately before and after giving effect to this Amendment, no Default shall have occurred and be continuing.
(e) The Company shall have paid (i) to the Agent, for the benefit of each Lender under Revolving Credit Facility-B executing this Amendment prior to or concurrently with the effectiveness thereof, the amendment fee described in the Fee Letter dated February 3, 2010, between the Company and the Agent (the “Fee Letter”) and (ii) all invoiced accrued fees and expenses of the Administrative Agent and Citigroup Global Markets Inc., as sole lead arranger in respect of this Amendment, (including the reasonable fees and expenses of Shearman & Sterling LLP, counsel for the Administrative Agent) due Agent and payable on the sole lead arranger in respect of this Amendment, for which invoices shall have been provided to the Company at least two Business Days prior to the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebyDate).
(f) The Borrowers shall have permanently reduced Commitments under the Revolving Credit Facility-A, for the benefit of each Lender under Revolving Credit Facility-A certificate of executing this Amendment prior to or concurrently with the Secretary effectiveness thereof (other than any such Lender electing in writing to the Agent at or an Assistant Secretary of prior to such time to not receive such Commitment reduction), in the aggregate principal amount set forth in the Fee Letter. By executing this Amendment, the Required Lenders hereby (i) consent to the Borrower certifying payment of amendment fees in accordance with Section 2(e) hereof and the names and true signatures of reduction in Commitments under the officers of the Borrower authorized to sign this Amendment and Revolving Credit Facility-A in accordance with Section 2(f) hereof, (ii) each Guarantor certifying agree that the names and true signatures of the officers of such Guarantor authorized Credit Agreement is deemed to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject be amended to make any modifications to the applicable payment, pro rata and sharing provisions of Section 9.01 of the Credit AgreementAgreement needed to permit the payment by the Company of amendment fees in accordance with Section 2(e) hereof and to permit the Company to reduce Commitments under the Revolving Credit Facility-A in accordance with Section 2(f) hereof, (iii) waive any notice and dollar amount requirements under Sections 2.05(a) or 2.10(a) of the Credit Agreement in connection with the reduction in Commitments under the Revolving Credit Facility-A pursuant to Section 2(f) hereof and (iv) consent to the other amendments to the Credit Agreement set forth herein.
Appears in 1 contract
Sources: Credit Agreement (Eastman Kodak Co)
Conditions of Effectiveness. This Amendment (a) The Amendments contained in Section 2 above shall become not be effective as of until the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have has been satisfied:
(ai) The the Administrative Agent shall have has received (i) counterparts a counterpart of this Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower Borrower, the MLP, the other Loan Parties, the Administrative Agent, and each Lender orLender;
(ii) the Administrative Agent has received (x) a certificate of each Loan Party, dated as to any of the Lendersdate hereof and executed by an appropriate officer, advice satisfactory which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Eleventh Amendment and (B) certify that certain documents previously delivered to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each are in full force and effect as of the Guarantorsdate hereof or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, and (y) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date; and
(iii) the Administrative Agent has received a Note payable certificate signed by a Responsible Officer of the Borrower certifying that (A) the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects on and as of such date (unless such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (B) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date (after giving effect to this Amendment), (C) since March 31, 2020, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (D) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement and as to which notice has not been given, and (E) no action, suit, investigation or proceeding is pending or, to the order knowledge of each Lender requesting such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the same in Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a principal amount equal to such Lender’s respective Revolving Credit Commitment as Material Adverse Effect. The Administrative Agent agrees that it will, upon the satisfaction of the conditions contained in this Section 4(a), promptly provide notice to the Borrower and the Lenders of the occurrence of the Eleventh Amendment Effective Date.
(b) The representations and warranties set forth Amendments contained in Section 3 above shall not be effective until the date each of the Loan Documents shall following conditions precedent has been satisfied:
(i) if the Exchange Offer will be correct in all material respects completed on and as of the Eleventh Amendment Effective Date, before the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(ii) if the Exchange Offer will be completed on the Eleventh Amendment Effective Date, the Borrower has paid (x) an amendment fee (the “Amendment Fee”) to the Administrative Agent (for the benefit of each Lender party hereto) in an aggregate amount equal to 0.25% of each such Lender’s Commitment as of the Eleventh Amendment Effective Date (after giving effect to this Amendmentthe amendments becoming effective on such date) and (y) the Administrative Agent’s reasonable legal fees and expenses to the extent invoiced at least one (1) Business Day prior to the Eleventh Amendment Effective Date;
(iii) either (x) the Administrative Agent has received evidence in form and substance satisfactory to it that the Exchange Offer will be completed on the Eleventh Amendment Effective Date with no more than $36,500,000 in principal amount of MLP Senior Notes outstanding after giving effect thereto or (y) the Exchange Offer Deadline has occurred; and
(iv) if the Exchange Offer will be completed on the Eleventh Amendment Effective Date, as though made on and the Administrative Agent has received that certain Intercreditor Agreement, dated as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Eleventh Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred form and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of substance satisfactory to the Administrative Agent (including it being understood that the reasonable fees form of Intercreditor Agreement received by the Administrative Agent on the date hereof is satisfactory) and expenses of counsel for duly executed by the Administrative Agent) due , the Loan Parties and payable on the other parties thereto. The Administrative Agent agrees that it will, upon the satisfaction of the conditions contained in this Section 4(b), promptly provide notice to the Borrower and the Lenders of the occurrence of the Eleventh Amendment Effective Date. If the Eleventh Amendment Effective Date shall have been paid in full.
(e) Certified copies occurs as a result of the Exchange Offer Deadline occurring without the completion of the Exchange Offer by such date, the Borrower agrees to (i) pay the resolutions Amendment Fee within one (1) Business Day after the Exchange Offer Deadline, and that any failure to pay such amount shall constitute an immediate Event of Default and (ii) provide to the Board of Directors, general partner or managing memberAdministrative Agent an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, of (Aor that is requesting a promissory note pursuant to Section 2.09(a) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementAgreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of is subject to the first date (the “Amendment Effective Date”) on which, and only if, each satisfaction or waiver of the following conditions precedent shall have been satisfied:(the date of such satisfaction or waiver being the “Amendment No. 1 Effective Date”):
(a) The the Administrative Agent shall have received copies of counterparts of this Amendment duly executed by the Borrower, the Parent Guarantor, the Administrative Agent, each of the Lenders and each L/C Issuer;
(b) the Administrative Agent shall have received (i) counterparts a favorable opinion of this Amendment executed by L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, New York counsel to the Borrower and the Parent Guarantor and (ii) a favorable opinion of B▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to the Borrower and the Parent Guarantor, each Lender or, as to any of the Lenders, advice satisfactory addressed to the Administrative Agent and the Lenders;
(c) the Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents;
(d) the Administrative Agent shall have received the certificate or articles of incorporation or formation, articles of organization, or other comparable organizational instrument of the Parent Guarantor and the Borrower to be filed with the State Department of Assessments and Taxation of Maryland;
(e) the Administrative Agent shall have received copies certified by a Responsible Officer of each such Person of (i) the by-laws or operating agreement (or the equivalent governing documents) of the Parent Guarantor and the Borrower and (ii) all necessary resolutions or other action taken by the board of directors of the Parent Guarantor to authorize the execution, delivery and performance of this Amendment by the Parent Guarantor and the Borrower;
(f) the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and the Parent Guarantor is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such Lender qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(g) the Administrative Agent shall have received a certificate, duly executed by a Responsible Officer, certifying that (i) the Merger and the Conversion has occurred or shall occur substantially simultaneously with the effectiveness of this Amendment and attaching a fully executed this Amendment, copy of the Merger Agreement; (ii) the consent attached hereto (Parent Guarantor and the “Consent”) executed by each Borrower have received all approvals, consents and waivers, and have made or given all necessary filings and notices as shall be required to consummate the Reorganization, the Merger, the Conversion and the other transactions contemplated hereby, which do not and will not as of the GuarantorsAmendment No. 1 Effective Date after giving effect to the consummation of the Merger and the Conversion (a) contravene the terms of any of such Loan Party’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Loan Party is party or affecting such Loan Party or the properties of such Loan Party or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject; or (c) violate any Law; except in each case referred to in subclause (b) or (c), to the extent such conflict, breach, contravention or violation, or creation of any such Lien or required payment, could not reasonably be expected to have a Material Adverse Effect; and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment No. 1 Effective Date, before immediately following the Reorganization, the Merger, the Conversion and after giving effect the other transactions contemplated hereby, the Borrower shall be a Wholly-Owned Subsidiary of the Parent Guarantor;
(h) the Borrower and the Parent Guarantor shall have provided to this Amendment, as though made on the Administrative Agent and as of the applicable Lender the documentation and other information reasonably requested in writing by the Administrative Agent or such date (except for any such representation and warranty that, by its terms, refers Lender at least ten Business Days prior to a specific date other than the Amendment No. 1 Effective Date that satisfies all requirements of regulatory authorities applicable to such Lender and such Lender’s internal policies and procedures in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in each case at least five Business Days prior to the Amendment No. 1 Effective Date;
(i) to the extent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Person shall have delivered to the Administrative Agent, and any Lender reasonably requesting, in writing at least ten (10) Business Days prior to the Amendment No. 1 Effective Date, the same, a Beneficial Ownership Certification in which relation to the Borrower, in each case as of such specific date).at least five Business Days prior to the Amendment No. 1 Effective Date; and
(cj) No event the Administrative Agent shall have occurred and be continuing, or shall result from the effectiveness received payment of this Amendment, that constitutes a Default.
(d) All of the all fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on in connection with this Amendment; provided that invoices for such fees and expenses have been presented to the Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the Amendment No. 1 Effective Date shall have been paid in fullDate.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment 3.1 The limited consent set forth in Article I shall become effective as of the first date when, and only when, the Administrative Agent shall have received an executed counterpart of this Amendment from the Credit Parties and Lenders constituting Required Lenders under the Credit Agreement.
3.2 The amendments set forth in Section 2.1 hereof shall become effective as of the date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts an executed counterpart of this Amendment executed by from the Borrower Credit Parties and each Lender or, as to any of Lenders constituting Required Lenders under the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Agreement;
(b) The Merger shall have been consummated substantially simultaneously with the Amendment Effective Date in accordance with the terms of the Merger Agreement in all material respects and without giving effect to any modifications, amendments, consents or waivers of the terms of the Merger Agreement that are material and adverse to the Lenders, the Fronting Bank or the Administrative Agent as reasonably determined by the Administrative Agent, without the prior consent of the Required Lenders (such consent not to be unreasonably withheld, delayed or conditioned).
(c) The Administrative Agent shall have received an executed Guaranty from RenRe Holdings in substantially the form attached hereto as Exhibit A (the “RenRe Holdings Guaranty”);
(d) The Administrative Agent shall have received a certificate, signed by a Responsible Officer of Platinum Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) all representations and warranties of the Credit Parties contained in the Credit Agreement and the other Credit Documents (including the representations and warranties set forth in each of the Loan Documents shall be Article IV hereof) are true and correct in all material respects on and as of the Amendment Effective Date, before immediately after giving effect to this Amendment (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date), and (ii) no Default or Event of Default has occurred and is continuing as of the Amendment Effective Date, immediately after giving effect to this Amendment;
(e) The Administrative Agent shall have received a certificate of the secretary, an assistant secretary or other appropriate officer of Platinum Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of Platinum Holdings as in effect immediately following the consummation of the Merger and (ii) attached thereto is a true and complete copy of the bylaws or similar governing document of Platinum Holdings as in effect immediately following the consummation of the Merger;
(f) The Administrative Agent shall have received a certificate of the secretary, an assistant secretary or other appropriate officer of RenRe Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of RenRe Holdings, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (ii) attached thereto is a true and complete copy of the bylaws or similar governing document of RenRe Holdings, as though made on then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such date certificate, and (iii) attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of RenRe Holdings authorizing the execution, delivery and performance of the RenRe Holdings Guaranty, and as to the incumbency and genuineness of the signature of each officer of RenRe Holdings executing the RenRe Holdings Guaranty;
(g) There shall be no Loans outstanding on the Amendment Effective Date and the aggregate Letter of Credit Exposure of the Lenders on the Amendment Effective Date shall not be greater than $100,000,000;
(h) Each Lender shall have received such other documentation or information regarding RenRe Holdings required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, as each Lender may reasonably request at least five Business Days prior to the consummation of the Merger;
(i) All material governmental authorizations and approvals necessary in connection with the consummation of the Merger shall have been obtained and shall remain in effect and shall not impose any restriction or condition materially adverse to the Administrative Agent, the Fronting Bank or the Lenders; and no law or regulation shall be applicable that seeks to enjoin, restrain, restrict, set aside or prohibit, or impose materially adverse conditions upon, the consummation of the Merger; and all third-party consents necessary in connection with the consummation of the Merger shall have been obtained and remain in effect (except for any third-party consents with respect to which the failure to obtain such representation and warranty that, by its terms, refers to consents would not result in a specific date other than the Amendment Effective Date, in which case as of such specific dateMaterial Adverse Effect).; and
(cj) No event The Credit Parties shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees paid all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment (including including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, Agent with respect to this Amendment, the Consent and the matters contemplated hereby and therebythereto).
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment 2.1 The amendments set forth in ARTICLE I shall become effective as of the first date (the “First Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lendersfollowing, advice each in form and substance satisfactory to the Administrative Agent that such Lender has and each of the Lenders:
(i) An executed counterpart of this Amendment, Amendment from each of the Borrower and each of the Lenders.
(ii) the consent attached hereto (the “Consent”) executed by each Copies of the Guarantorsarticles or certificate of incorporation of the Borrower, together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(iii) a Note payable to Copies, certified by the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as Secretary or Assistant Secretary of the Amendment Effective DateBorrower, of its bylaws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents.
(biv) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective DateAn incumbency certificate, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, executed by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying Borrower, which shall identify by name and title and bear the names and true signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(v) A certificate, signed by an Authorized Officer, stating that on the First Amendment Effective Date the representations and warranties of the Borrower contained in Article III of this Amendment shall be true and correct on and as of the First Amendment Effective Date.
(vi) A written opinion of the Borrower’s counsel, addressed to the Administrative Agent, the Lenders and the LC Issuers, dated as of the First Amendment Effective Date, in form and substance satisfactory to the Administrative Agent.
(vii) Any Notes requested by a Lender pursuant to Section 2.12 of the Credit Agreement payable to the order of each such requesting Lender.
(viii) Such other documents as any Lender or its counsel may have reasonably requested. 12609639v4
(b) The Administrative Agent and the Lenders shall have received, at least five (5) Business Days prior to the First Amendment Effective Date, all documentation and other information requested by the Administrative Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the Lenders to comply with requirements of any Anti-Money Laundering Laws, including the PATRIOT Act and any applicable “know your customer” rules and regulations.
(c) Unless the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulations, the Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it, in each case at least five (5) Business Days prior to the First Amendment Effective Date.
(d) The Borrower shall have paid to (i) ▇▇▇▇▇ Fargo Securities, LLC, the Administrative Agent and the Lenders any fees required under the ▇▇▇▇▇ Fargo Fee Letter (as defined below) to be paid to each of them, in the amounts due and payable on the First Amendment Effective Date as required by the terms thereof, and (ii) each Guarantor certifying JPMorgan Chase Bank, N.A. (“JPMorgan”) the names fees required under the JPMorgan Fee Letter, in the amount due and true signatures payable on the First Amendment Effective Date as required by the terms thereof. The “▇▇▇▇▇ Fargo Fee Letter” means that certain letter from ▇▇▇▇▇ Fargo and ▇▇▇▇▇ Fargo Securities, LLC to the Borrower, dated November 5, 2019, relating to certain fees payable by the Borrower in respect of the officers of such Guarantor authorized to sign the Consenttransactions contemplated by this Amendment. The effectiveness of this Amendment is conditioned upon “JPMorgan Fee Letter” means that certain letter from JPMorgan to the accuracy Borrower, dated November 5, 2019, relating to certain fees payable by the Borrower in respect of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementtransactions contemplated by this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Conditions of Effectiveness. This Amendment Agreement shall become effective as when the Administrative Agent shall have received counterparts of this Agreement executed by the first date Borrower, all Facility A Lenders, all Facility B Lenders and Lenders (including such Facility A Lenders and Facility B Lenders) that in the aggregate constitute “Amendment Effective Date”Required Lenders” under the Prior Credit Agreement; provided, however, that the Lenders shall not be required to make any Advance hereunder nor shall the Issuer be required to issue any Facility Letter of Credit hereunder, unless and until (i) on which, the Administrative Agent shall have received the fees provided to be paid pursuant to the Fee Letter and only if, (ii) the Administrative Agent shall have received each of the following items (with all documents required below, except as otherwise specified, to be dated the Closing Date, which date shall be the same for all such documents, and each of such documents to be in form and substance satisfactory to the Administrative Agent, to be fully and properly executed by all parties thereto, and (except for the Notes) to be in sufficient copies for each Lender), and the conditions precedent specified below shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts A Facility A Note payable to the order of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Facility A Note payable to the order of each Facility A Lender requesting that shall have requested a Facility A Note in accordance with this Agreement; a Facility B Revolver Note and a Facility B Term Note payable to the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as order of the Amendment Effective DateAdministrative Agent and a Facility B Revolver Note and Facility B Term Note payable to the order of each of the Facility B Lenders that shall have requested such Notes in accordance with this Agreement; and a Facility C Note payable to the order of the Administrative Agent and a Facility C Note payable to the order of each of the Facility C Lenders that shall have requested a Facility C Note in accordance with this Agreement.
(b) From each Subsidiary of the Borrower (except for the Mortgage Banking Subsidiaries and the Subsidiaries listed in Schedule VII hereto), a Guaranty executed and delivered as of the Closing Date or, if such Subsidiary has heretofore executed and delivered a Guaranty pursuant to the Original Credit Agreement or the Prior Credit Agreement, a written instrument executed by such Guarantor ratifying such Guaranties.
(c) From the Borrower and each of the Guarantors that owns Capital Stock or other equity interests in any Significant Subsidiary and such other Subsidiaries as may be required pursuant to Section 8.01(a)(ii), Pledge Agreements executed and delivered as of the Closing Date or, to the extent such Pledge Agreements have heretofore been executed and delivered pursuant to the Original Credit Agreement or the Prior Credit Agreement, a written instrument executed by the Borrower and such Subsidiaries ratifying such Pledge Agreements, which Pledge Agreements pledge (in each case) the Capital Stock of such Subsidiaries, together with such stock certificates and other documents provided to be delivered pursuant to the Pledge Agreements and the Collateral Trust Agreement provided for in Section 8.03(a) (except to the extent previously delivered pursuant to the Original Credit Agreement or the Prior Credit Agreement).
(d) The favorable written opinions addressed to the Lenders, and in form and substance satisfactory to the Administrative Agent, from (i) Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇, LLP (counsel to the Borrower), with respect to (A) Borrower and (B) any other Loan Parties (other than those (if any) that are Subsidiaries of New U.S. Home) that are incorporated or formed under Florida, Delaware or New York law and that deliver a Guaranty or Pledge Agreement on the Closing Date, which opinion shall be substantially in the form delivered pursuant to the Prior Credit Agreement but which shall be limited to this Agreement and the Notes, Guaranties and Pledge Agreements delivered on the Closing Date hereunder and (ii) (if applicable) from ▇▇▇▇▇▇ ▇▇▇▇ (Executive Director-Legal, of New U.S. Home) substantially in the form delivered pursuant to the Prior Credit Agreement, but only with respect to the Subsidiaries of New U.S. Home (if any) that deliver Guaranties or Pledge Agreements on the Closing Date hereunder. The Borrower hereby instructs such counsel to prepare their opinions and deliver such opinions to the Lenders for the benefit of the Lenders, and such opinions shall contain a statement to such effect.
(e) The following supporting documents with respect to each Loan Party (except as otherwise provided below): (i) a copy of its certificate or articles of incorporation or formation or certificate of limited partnership (as applicable) certified as of a date reasonably close to the Closing Date to be a true and accurate copy by the Secretary of State of its state of incorporation or formation (except as otherwise provided below); (ii) a certificate of that Secretary of State, dated as of a date reasonably close to the Closing Date, as to its existence and (if available) good standing (except as otherwise provided below); (iii) a certificate of the Secretary of State of each jurisdiction, other than its state of incorporation, in which it does business, as to its qualification as a foreign corporation; (iv) a copy of its by-laws, partnership agreement or operating agreement (as applicable), certified by its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable) to be a true and accurate copy of its by-laws, partnership agreement or operating agreement (as applicable) in effect on the Closing Date (except as otherwise provided below); (v) a certificate of its secretary or assistant secretary, general partner, manager or other appropriate Person (as applicable), as to the incumbency and signatures of its officers or other Persons who have executed any documents on behalf of such Loan Party in connection with the transactions contemplated by this Agreement; (vi) a copy of resolutions of its Board of Directors, certified by its secretary or assistant secretary to be a true and accurate copy of resolutions duly adopted by such Board of Directors, or other appropriate resolutions or consents of, its partners or members certified by its general partner or manager (as applicable) to be true and correct copies thereof duly adopted, approved or otherwise delivered by its partners or members (to the extent necessary and applicable), each of which is certified to be in full force and effect on the Closing Date, authorizing the execution and delivery by it of this Agreement and any Notes, Guaranties and other Loan Documents delivered on the Closing Date to which it is a party and the performance by it of all its obligations thereunder; and (vii) such additional supporting documents and other information with respect to its operations and affairs as the Administrative Agent may reasonably request; provided, however, that, with respect to Loan Parties (other than the Borrower) that have delivered a Guaranty or Pledge Agreement prior to, and not on, the Closing Date, the items identified in this subparagraph (e) shall not be required to be delivered to the extent that the Borrower delivers to the Administrative Agent a certificate certifying that the items referred to under clauses (i), (iv), (v) and (vi) above (as applicable) delivered to the Administrative Agent on the Original Closing Date or the Prior Closing Date with respect to such Loan Parties have not been modified or amended since the date o which they were so delivered.
(f) Certificates signed by a duly authorized officer of the Borrower stating that: (i) the representations and warranties set forth in each of the Loan Documents shall be Borrower contained in Article IV hereof are correct in all material respects and accurate on and as of the Amendment Effective Date, before and after giving effect to this Amendment, Closing Date as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Closing Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action no event has occurred and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebyis continuing which constitutes an Event of Default or Unmatured Default hereunder.
(fg) A certificate signed by an Authorized Financial Officer of the Secretary or an Assistant Secretary of Borrower showing in reasonable detail the calculations used to determine the Leverage Ratio for the Pricing Grid.
(h) The certified financial statements provided for in Section 6.04(b) and Section 6.04(c) hereof for the quarter ending February 28, 2003.
(i) The report provided for in Section 6.04(g) hereof for the Borrower certifying month ending March 31, 2003.
(j) The certified report provided for in Section 6.04(l) hereof for the names and true signatures of quarter ending February 28, 2003.
(k) Such other documents as the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementAdministrative Agent or its counsel may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Lennar Corp /New/)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichhereof when, and only ifwhen, each of the following conditions precedent Administrating Bank shall have been satisfied:
received: (a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower Company, the Administrating Bank, the Funding Bank and each Lender orof the Participating Banks (in sufficient quantity for each party to have a fully executed original), (b) for the account of each Participating Bank, an upfront fee in the amount agreed upon by the Company and such Participating Bank, as notified in writing by the Company to any the Administrating Bank on or before the date hereof, (c) for the account of the LendersAdministrating Bank, advice the fees set forth in that certain Third Amended and Restated Fee Letter, dated the date hereof, between the Company and the Administrating Bank, to the extent that such fees are due and payable on the effective date of this Amendment, and (d) all of the following documents, each document being dated the date of receipt thereof by the Administrating Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has executed Administrating Bank:
(i) An opinion of M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇, LLP, as New York counsel to the Company.
(ii) An opinion of Friday, E▇▇▇▇▇▇▇ & C▇▇▇▇, LLP, as Arkansas counsel to the Company.
(iii) Copies of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this Amendment, (ii) certified by the consent attached hereto (the “Consent”) executed by each Secretary or an Assistant Secretary of the GuarantorsCompany (which certificate shall state that such resolutions are in full force and effect as of such date and have not been modified, rescinded or amended since the date of adoption thereof).
(iv) Certified copies of all approvals, authorizations, orders or consents of, or notices to or registrations with, any governmental body or agency required for the Company to execute, deliver and perform its obligations under this Amendment.
(v) Certificates as to the good standing of the Company, as of a recent date, from the Secretary of State of the State of Arkansas and the Secretary of State of the State of Mississippi.
(vi) A certificate of the Secretary or Assistant Secretary of the Company certifying (A) that attached thereto is a true and complete copy of the by-laws of the Company as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (iii) above, (B) that (x) attached thereto is a true and complete copy of the certificate or articles of incorporation, including all amendments thereto, of the Company and (y) such certificate or articles of incorporation have not been amended since the date of the last amendment thereto, and (iiiC) a Note payable as to the order incumbency and specimen signature of each Lender requesting the same officer executing this Amendment or any other document or certificate delivered in a principal amount equal to such Lender’s respective Revolving Credit Commitment as connection herewith on behalf of the Amendment Effective DateCompany; together with a certificate of another officer of the Company as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the foregoing certificate.
(bvii) The consent of Entergy Corporation, Entergy Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc. and Entergy New Orleans, Inc., in substantially the form of Exhibit A hereto, duly executed by an authorized officer thereof.
(viii) A certificate of a duly authorized officer of the Company (the statements in which shall be true) stating that (A) the representations and warranties set forth contained in each Section 10 of the Loan Documents shall be Amended Agreement are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, such date as though made on and as of such date (except for any such representation and warranty thatdate, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving no Reimbursement Default, Prepayment Event, Event of Default, Indenture Event of Default, Event of Loss or Deemed Loss Event has occurred and is continuing and no Reimbursement Default, Prepayment Event, Event of Default, Indenture Event of Default, Event of Loss or Deemed Loss Event will result from the Consent execution, delivery and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness performance of this Amendment is conditioned upon or the accuracy consummation of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementtransactions contemplated thereby.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Entergy Texas, Inc.)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent Bank shall have received (i) counterparts of this Amendment executed by the Borrower Borrowers and each Lender orthe Bank and the consent hereto executed by the Guarantor, as to any except that Section 1 hereof shall become effective when, and only when, the Bank shall have additionally received all of the Lendersfollowing documents, advice each document (unless otherwise indicated) being dated the date of receipt thereof by the Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) Bank and the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Guarantor:
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(ea) Certified copies of (i) the resolutions of the Board of Directors, general partner Directors or managing member, as applicable, Executive Committee of (A) the each Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and hereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Amendment and the matters contemplated hereby hereby, (iii) all waivers and therebyamendments with respect to the Senior Debt (as defined in the Intercreditor Agreement) concerning the matters covered by this Amendment, which shall include an amendment to the Senior Debt (as defined in the Intercreditor Agreement) documents extending the maturity date thereof to January 2, 1998, (iv) an executed copy of that certain memorandum Re: Terms and Conditions Addendum for Contract Extension to U.S. HomeCare Receivables Purchasing Program, dated March 12, 1997, by and between The Chase Manhattan Bank and the Parent, and (v) management-prepared financial statements as of December 31, 1996.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the each Borrower certifying the names and true signatures of the officers of the such Borrower authorized to sign this Amendment and the other documents to be delivered hereunder.
(c) A favorable opinion of Brob▇▇▇, ▇▇le▇▇▇ & ▇arr▇▇▇▇ ▇▇▇, counsel for the Borrowers, to the effect that this Amendment and each and every other document delivered by any of the Borrowers have been duly authorized, executed and delivered by such Borrowers, and constitute the legal, valid and binding obligations of such Borrowers, enforceable against such Borrowers in accordance with their respective terms, and as to such other matters as the Bank or the Guarantor may reasonably require.
(d) A certificate signed by a duly authorized officer of each Borrower stating that:
(i) The representations and warranties contained in Section 3 hereof are correct on and as of the date of such certificate as though made on and as of such date, and
(ii) each Guarantor certifying After giving effect to the names and true signatures terms of the officers Amendment, no event has occurred and is continuing which constitutes a Default or an Event of such Guarantor authorized Default.
(iii) All conditions to sign the Consent. The effectiveness of this Section 1 of Amendment is conditioned upon the accuracy of the factual matters described hereinNo. This Amendment is subject 3 to the provisions Restated First Credit Agreement with the Senior Lenders, a certified copy of which shall have been provided to the Bank as provided above, have been satisfied and that Section 9.01 1 is effective.
(e) A fully executed amendment to the Guarantee extending the termination date thereof to a date no 4 earlier than January 31, 1998. -4-
(f) Payment of a $15,000 extension fee to the Credit AgreementBank, which shall be fully earned by the Bank on the date so paid.
Appears in 1 contract
Sources: Credit Agreement (Us Homecare Corp)
Conditions of Effectiveness. This Amendment shall become effective in the order and in the manner herein described, as of the first date upon which each of the conditions precedent set forth below in this Section 3 shall be satisfied or waived in accordance with Section 9.08 of the Unamended Credit Agreement (such date, the “"Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:"):
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Amended Credit Agreement and the other Loan Documents shall be true and correct in all material respects as of the Amendment Effective Date, with the same effect as though made on and as of such date; provided to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided, further, that any representation and warranty that is qualified as to "materiality," "Material Adverse Effect" or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(b) Both on and as of the date hereof and on and as of the Amendment Effective Date, both before and after giving effect to this Amendment, as though made no event has occurred and is continuing that constitutes a Default or an Event of Default under the Unamended Credit Agreement, the Amended Credit Agreement and the other Loan Documents.
(c) The execution, delivery of, and the performance of this Amendment by Holdings, the Company and the other Borrowers are permitted under the terms of all Material Indebtedness.
(d) The Administrative Agent (or its counsel) shall have received from Holdings, the Company, the other Borrowers and each Subsidiary Loan Party, the Administrative Agent and the Additional Revolving Lenders party hereto either (i) a counterpart of this Amendment signed on and as behalf of such date party or (except for any ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such representation party has signed a counterpart of this Amendment.
(e) The Administrative Agent shall have received, on behalf of itself and warranty that, by its terms, refers to a specific date other than the Lenders and each Issuing Bank on the Amendment Effective Date, a favorable written opinion of (i) ▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the Loan Parties, (ii) ▇▇▇▇▇ ▇▇▇▇▇▇, in-house counsel for the Loan Parties, and (iii) ▇▇▇▇▇▇▇ & ▇▇▇▇, Wisconsin counsel for certain of the Loan Parties, in which each case (A) dated the Amendment Effective Date, (B) addressed to the Administrative Agent and the Lenders, and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as of such specific date)the Administrative Agent shall reasonably request.
(cf) No event The Administrative Agent shall have occurred received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and be continuing(iv) below:
(i) only if such document or item has not previously been delivered, or shall result from have changed since the effectiveness later of this Amendment, that constitutes a Default.
(dx) All its last date of the fees and expenses of its previous delivery to the Administrative Agent pursuant to the Unamended Credit Agreement, and (y) the Amendment Effective Date, a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, as applicable, including all amendments thereto, of each Loan Party, (A) in the reasonable fees case of a corporation, certified as of a recent date of the Amendment Effective Date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and expenses a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of counsel for such jurisdiction) of each such Loan Party as of a recent date of the Administrative AgentAmendment Effective Date or (B) due in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Amendment Effective Date and payable certifying:
(A) (1) that attached thereto is a true and complete copy of the bylaws (or partnership agreement, limited liability company agreement, operating agreement or other equivalent governing documents) of such Loan Party as in effect on the Amendment Effective Date shall and at all times since the date of the resolutions described in clause (B) below, or (2) that the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party, as in effect on the Amendment Effective Date, have not been paid in full.modified, rescinded or amended since the latter of (x) its last date of delivery to the Administrative Agent pursuant to the Unamended Credit Agreement and (y) the Amendment Effective Date,
(eB) Certified copies that attached thereto is a true and complete copy of (i) the resolutions of duly adopted by the Board of Directors, 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 to which such person is a party and, in the case of the Borrowers, the borrowings thereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Amendment Effective Date,
(C) that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such Loan Party has not been amended since the date of the last amendment thereto disclosed or delivered pursuant to clause (i) above,
(D) as applicableto 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
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(Aiii) a certificate of a director or another officer as to the Borrower approving this Amendment incumbency and specimen signature of the matters contemplated hereby and thereby and (B) each Guarantor approving Secretary or Assistant Secretary or similar officer executing the Consent and the matters contemplated hereby and thereby and certificate pursuant to clause (ii) all above; and
(iv) such other documents evidencing other necessary corporate action as the Administrative Agent or the Additional Revolving Lenders on the Amendment Effective Date may reasonably request (including without limitation, tax identification numbers, addresses and governmental approvalsany information requested pursuant to "know your customer" requirements).
(g) the Administrative Agent shall have received from a Financial Officer of the Company, if anyan officer's certificate to the effect that the execution, with respect to delivery and performance of this Amendment, the Consent Amended Credit Agreement and the matters contemplated hereby and therebyother Loan Documents by the Loan Parties will not conflict with, result in a breach of or constitute a default under, or give rise to a right of, or result in, any cancellation or acceleration under, any indenture, credit or loan agreement or other documents or instruments to which any Loan Party is party with respect to any Material Indebtedness.
(fh) A certificate The Agents shall have received to the extent invoiced, reimbursement or payment of all reasonable outofpocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and local counsel) required to be reimbursed or paid by the Secretary Loan Parties hereunder or an Assistant Secretary of under any Loan Document.
(i) The Administrative Agent shall have received for the Borrower certifying the names ratable account and true signatures benefit of each Additional Revolving Lender executing this Amendment a nonrefundable fee equal to 0.10% of the officers aggregate principal amount of Additional Revolving Commitments of such Additional Revolving Lender. For purposes of determining compliance with the conditions specified above, 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 Borrower authorized Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to sign this the Amendment Effective Date specifying its objection thereto and (ii) each Guarantor certifying such Lender shall not have made available to the names and true signatures Administrative Agent such Lender's ratable portion of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementinitial Borrowing, if any.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Plastics Group Inc)
Conditions of Effectiveness. This The effectiveness of this First Amendment shall become effective as (including the amendments contained in Section 1 and agreements contained in Section 2) are subject to the satisfaction (or waiver) of the first date following conditions (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) on which, and only if, each of the following conditions precedent This First Amendment shall have been satisfied:duly executed by the Borrowers, Holdings, the Subsidiary Guarantors and the Administrative Agent (which may include a copy transmitted by facsimile or other electronic method), and delivered to the Administrative Agent, and the Lenders under the Credit Agreement consisting of Lenders holding more than 50% of the aggregate outstanding principal amount of the Initial Term B Loans immediately prior to the First Amendment Effective Date.
(ab) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Top Borrower as to the matters set forth in paragraphs (d) and (e) of this Section 3;
(c) The Administrative Agent shall have received (i) counterparts a certificate of this each Loan Party, dated the First Amendment Effective Date and executed by the Borrower a secretary, assistant secretary or other Responsible Officer thereof, which shall (A) certify that either (x) (i) attached thereto is a true and each Lender or, as to any complete copy of the
(i) attached thereto is a true and correct copy of the Lendersby-laws or operating, advice satisfactory to management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Administrative Agent that Closing Date and such Lender has executed this Amendmentby-laws or operating, management, partnership or similar agreement are in full force and effect or (ii) if applicable, the consent by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto delivered on the Closing Date have not been amended, repealed, modified or restated and are in full force and effect and (z) attached hereto (the “Consent”) executed by each thereto is a true and complete copy of the Guarantorsresolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution and delivery of this First Amendment and any related Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and (iiiB) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign this First Amendment or any of such other Loan Documents to which such Loan Party is a party on the Closing Date and (ii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment good standing (or equivalent) certificate as of a recent date for such Loan Party from the Amendment Effective Daterelevant authority of its jurisdiction of organization.
(bd) No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to the transactions contemplated hereby;
(e) The representations and warranties of the Borrowers and each of the Guarantors set forth in each Section 4 of the Loan Documents shall be correct in all material respects on this First Amendment are true and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).correct;
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(df) All of the fees and expenses required to be paid in connection with this First Amendment or pursuant to that certain engagement letter, dated as of March 28, 2017 (the Administrative Agent “Engagement Letter”), by and among the Top Borrower and the Repricing Arrangers (including as defined below) and any fee letter entered into by the reasonable fees Top Borrower and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date any party thereto shall have been paid in fullfull in cash or will be paid in full in cash on the First Amendment Effective Date, including, without limitation, all reasonable and documented out-of-pocket expenses incurred by the Repricing Arrangers, the Administrative Agent and their respective Affiliates in connection with the execution and delivery of this First Amendment.
(eg) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvalsThe Replacement Lender, if any, shall have executed and delivered the Master Assignment contemplated by Section 2 above and all conditions to the consummation of the assignments in accordance with Section 2 above shall have been satisfied and such assignments shall have been consummated.
(h) The Borrowers shall have, substantially concurrently with the effectiveness of this First Amendment, paid to each Non-Consenting Term Lender all accrued interest, fees and other amounts payable to such Non-Consenting Term Lender under any Loan Document with respect to this Amendmentthe Initial Term B Loans assigned by such Non-Consenting Term Lender under Section 2(c) above (other than principal and all other amounts paid to such Non-Consenting Term Lender under Section 2 above), if any, then due and owing to such Non-Consenting Term Lender under the Consent Credit Agreement and the matters contemplated hereby and thereby.
other Loan Documents (f) A certificate of immediately prior to the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementFirst Amendment).
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall Agent, the Issuing Bank and the Banks have received (i) counterparts of relied upon the representations and warranties in this Amendment executed by in agreeing to the Borrower amendments to the Agreement set forth herein and the amendments to the Agreement set forth herein are conditioned upon and subject to the accuracy of each Lender or, as to any and every representation and warranty of each of the LendersBorrowers and the Parent made or referred to herein, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed and performance by each of the Guarantors, Borrowers and the Parent of its obligations to be performed under the Agreement on or before the date of this Amendment (iii) a Note payable except to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Dateextent amended herein).
(b) The representations and warranties amendments to the Agreement set forth in herein are further conditioned upon receipt by the Administrative Agent of certificates of the Secretary or Assistant Secretary of each of the Loan Documents shall be correct Borrowers and the Parent certifying those certain resolutions of each respective Board of Directors delivered to the Banks as of July 19, 1999 in all material respects on connection with the Credit Agreement have not been amended, rescinded or revoked and are in full force and effect as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date)hereof.
(c) No event shall The amendments to the Agreement set forth herein are further conditioned upon the Borrowers having paid to each of the Banks that have occurred and be continuing, or shall result from approved the effectiveness terms of this Amendment, that constitutes a DefaultAmendment an amendment fee equal to the product of twenty-five basis points multiplied by such Bank=s Commitment.
(d) All of The amendments to the Agreement set forth herein are further conditioned upon the Borrowers having paid all accrued and unpaid legal fees and expenses referred to in SECTION 16 of the Administrative Agent (including the reasonable fees Agreement and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in fullSECTION 7 hereof.
(e) Certified copies The amendments to the Agreement set forth herein are further conditioned upon the Borrowers having delivered to the Administrative Agent an original executed copy of (i) the resolutions that certain Consent to Assignment of the Board Charter dated as of DirectorsJuly 19, general partner or managing member1999 by and among Trico Marine Assets, as applicableInc. and Trico Marine Operators, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.Inc.
(f) A certificate of The amendments to the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is Agreement set forth herein are further conditioned upon the accuracy of the factual matters described herein. This Amendment is subject Borrowers having delivered to the provisions Administrative Agent a favorable opinion addressed to the Banks and the Administrative Agent, dated as of Section 9.01 of even date hereof, in form and substance satisfactory to the Credit AgreementBanks and the Administrative Agent, from: Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P., counsel to the Borrowers and the Parent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Trico Marine Services Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the first date written hereof (such date being referred to as the “Amendment No. 1 Effective Date”) on which, and only if, when each of the following conditions precedent shall have been satisfied:
: (a) The the Administrative Agent shall have received duly executed signature pages for this Amendment signed by each Loan Party, the Administrative Agent and each 2025 Refinancing Lender; (b) the Administrative Agent shall have received (i) counterparts a certificate of a Responsible Officer of the Borrower that the statements set forth in Section 5 of this Amendment executed and in clauses (d) and (e) below are true and correct and (ii) a solvency certificate in substantially the form of Exhibit G to the Existing Credit Agreement from the chief financial officer (or similar officer, director or authorized signatory) of the Borrower dated as of the Amendment No. 1 Effective Date and certifying as to the matters set forth therein (after giving effect to the transactions contemplated by this Amendment to occur on the Amendment No. 1 Effective Date); (c) the Administrative Agent shall have received a customary opinion of Ropes & Gray LLP, New York and Delaware counsel to Holdings, the Borrower and each Lender orthe Subsidiary Guarantors, as addressed to any of the Administrative Agent and the 2025 Refinancing Lenders, advice in form and substance reasonably satisfactory to the Administrative Agent that such Lender has executed this Amendment, Agent; (iid) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents Parties contained in Article V of the Credit Agreement or in any other Loan Document shall be true and correct in all material respects on and as of the Amendment No. 1 Effective DateDate (except in the case of any representation or warranty which expressly relates to a given date or period, before such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to this Amendment, as though made any qualification therein) in all respects on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.respective dates;
Appears in 1 contract
Sources: Credit Agreement (V2X, Inc.)
Conditions of Effectiveness. This Amendment and Waiver shall become be effective as of the first date September 28, 2008 (the “Eighth Amendment Effective Date”) on whichwhen, and only if, each of the following conditions precedent shall have been satisfied:when,
(a) The a Borrower shall have paid, on or before October 1, 2008 to the Administrative Agent for the ratable account and benefit of each Lender executing this Amendment and Waiver on or before 5:00 p.m. Eastern time on October 1, 2008, a fee equal to 0.10% of the Total Exposure Amount of each such Lender;
(b) the Administrative Agent shall have received received, on or before October 1, 2008, the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Administrative Agent:
(i) counterparts Counterparts of this Amendment and Waiver executed by the each Borrower and each Lender the Required Lenders or, as to any of the Required Lenders, advice satisfactory to the Administrative Agent that such Required Lender has executed this Amendment, Amendment and Waiver;
(ii) Counterparts of the consent Consent and Confirmation attached hereto (the “Consent”) executed by each of the Guarantors, and Subsidiary Guarantor;
(iii) a Note payable In accordance with Section 6, evidence reasonably satisfactory to the order Administrative Agent that any and all expenses of all counsel to the Administrative Agent for services rendered since the date of their last invoice, or since they commenced work, as well as all expenses in connection with this Amendment and Waiver shall have been paid in full in accordance with Section 10.3 of the Credit Agreement;
(iv) A certificate signed by a duly authorized officer of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Borrower stating that:
(bA) The All representations and warranties set forth made by such Borrower in each of Section 4 hereof and in the Credit Agreement and the other Loan Documents shall be are true and correct in all material respects on and as of the Amendment Effective Datedate hereof as if made on the date hereof (unless stated to relate solely to an earlier date, before in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); and
(B) after giving effect to this AmendmentAmendment and Waiver, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event no Default shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(dc) All of Within 15 days after the fees and expenses of Eighth Amendment Effective Date, the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of received (i) the corporate resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) Borrowers authorizing the Borrower approving transactions contemplated under this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby Waiver and (ii) all documents evidencing other necessary corporate action and governmental approvalslegal opinions of Hunton & ▇▇▇▇▇▇▇▇ LLP, if anycounsel to the U.S. Borrower, with respect addressed to this Amendment, the Consent Administrative Agent and the Lenders, as to such matters contemplated hereby as the Administrative Agent may reasonably request including, without limitation, corporate formalities, due authorization and thereby.
(f) A certificate delivery and, enforceability of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementWaiver.
Appears in 1 contract
Conditions of Effectiveness. This Amendment The obligations of the Lenders to make Loans (or to purchase participations in Swingline Loans) and of the Issuing Banks to issue Letters of Credit hereunder shall become effective as of on the first date (the “Amendment Effective Date”) on which, and only if, which each of the following conditions precedent shall have been satisfied:is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received (i) counterparts from each party hereto a counterpart of this Amendment Agreement signed on behalf of such party (which, subject to Section 10.06(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Datesignature page).
(b) The Administrative Agent shall have received reasonably satisfactory written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of New York and Missouri counsel for the Credit Parties, covering such matters as the Required Lenders shall reasonably request. The Credit Parties hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of each Credit Party, stating that:
(i) the representations and warranties set forth contained in each Article III of the Loan Documents shall be this Agreement are correct in all material respects on and as of the Amendment Effective Closing Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).; and
(cii) No no event shall have has occurred and be continuing, or shall result from the effectiveness of this Amendment, is continuing that constitutes a Default.
(de) All of the The Administrative Agent shall have received all fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) other amounts due and payable on or prior to the Amendment Effective Date shall have been Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) by the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and therebyhereunder.
(f) A certificate All governmental and material third party approvals necessary in connection with the execution, delivery and performance of the Secretary or an Assistant Secretary of this Agreement shall have been obtained and be in full force and effect.
(i) The Administrative Agent shall have received, at least three days prior to the Closing Date, all documentation and other information regarding the Borrower certifying requested in connection with applicable "know your customer" and anti-money laundering rules and regulations, including the names and true signatures of Patriot Act, to the officers extent requested in writing of the Borrower authorized at least 10 days prior to sign this Amendment the Closing Date and (ii) each Guarantor certifying to the names extent the Borrower qualifies as a "legal entity customer" under the Beneficial Ownership Regulation, at least three days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and true signatures delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied). The Administrative Agent shall notify the Borrower and the Lenders of the officers Closing Date, and such notice shall be conclusive and binding. Without limiting the generality of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of the third paragraph of Article IX, for purposes of determining compliance with the conditions specified in this Section 9.01 of 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Credit AgreementAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichhereof when, and only ifwhen, each of the following conditions precedent Administrating Bank shall have been satisfied:
received: (a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower Company, the Administrating Bank, the Funding Bank and each Lender orof the Participating Banks (in sufficient quantity for each party to have a fully executed original), (b) for the account of each Participating Bank, an upfront fee in the amount agreed upon by the Company and such Participating Bank, as notified in writing by the Company to any the Administrating Bank on or before the date hereof, (c) for the account of the LendersAdministrating Bank, advice the fees set forth in that certain Amended and Restated Fee Letter, dated the date hereof, between the Company and the Administrating Bank, to the extent that such fees are due and payable on the effective date of this Amendment, and (d) all of the following documents, each document being dated the date of receipt thereof by the Administrating Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has executed Administrating Bank:
(i) An opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, as New York counsel to the Company.
(ii) An opinion of Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, as Arkansas counsel to the Company.
(iii) Copies of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this Amendment, (ii) certified by the consent attached hereto (the “Consent”) executed by each Secretary or an Assistant Secretary of the GuarantorsCompany (which certificate shall state that such resolutions are in full force and effect as of such date and have not been modified, rescinded or amended since the date of adoption thereof).
(iv) Certified copies of all approvals, authorizations, orders or consents of, or notices to or registrations with, any governmental body or agency required for the Company to execute, deliver and perform its obligations under this Amendment.
(v) Certificates as to the good standing of the Company, as of a recent date, from the Secretary of State of the State of Arkansas and the Secretary of State of the State of Mississippi.
(vi) A certificate of the Secretary or Assistant Secretary of the Company certifying (A) that attached thereto is a true and complete copy of the by-laws of the Company as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (iii) above, (B) that (x) attached thereto is a true and complete copy of the certificate or articles of incorporation, including all amendments thereto, of the Company and (y) such certificate or articles of incorporation have not been amended since the date of the last amendment thereto, and (iiiC) a Note payable as to the order incumbency and specimen signature of each Lender requesting the same officer executing this Amendment or any other document or certificate delivered in a principal amount equal to such Lender’s respective Revolving Credit Commitment as connection herewith on behalf of the Amendment Effective DateCompany; together with a certificate of another officer of the Company as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the foregoing certificate.
(bvii) The consent of Entergy Corporation, Entergy Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc. and Entergy New Orleans, Inc., in substantially the form of Exhibit A hereto, duly executed by an authorized officer thereof.
(viii) A certificate of a duly authorized officer of the Company (the statements in which shall be true) stating that (A) the representations and warranties set forth contained in each Section 10 of the Loan Documents shall be Amended Agreement are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, such date as though made on and as of such date (except for any such representation and warranty thatdate, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving no Reimbursement Default, Prepayment Event, Event of Default, Indenture Event of Default, Event of Loss or Deemed Loss Event has occurred and is continuing and no Reimbursement Default, Prepayment Event, Event of Default, Indenture Event of Default, Event of Loss or Deemed Loss Event will result from the Consent execution, delivery and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness performance of this Amendment is conditioned upon or the accuracy consummation of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementtransactions contemplated thereby.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Entergy Texas, Inc.)
Conditions of Effectiveness. (a) The Administrative Agent, the Issuing Bank and the Banks have relied upon the representations and warranties in this Amendment in agreeing to the amendments to the Agreement set forth herein and the amendments to the Agreement set forth herein are conditioned upon and subject to the accuracy of each and every representation and warranty of each of the Borrowers and the Parent made or referred to herein, and performance by each of the Borrowers and the Parent of its obligations to be performed under the Agreement on or before the date of this Amendment (except to the extent amended herein).
(b) The amendments to the Agreement set forth herein are further conditioned upon the Borrowers having paid all amendment fees and expenses, and all accrued and unpaid legal fees and expenses referred to in Section 16 of the Agreement and Section 7 hereof.
(c) This Amendment Agreement shall become be effective as of the date first date (written above when the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall in this Section 3 have been satisfied:
(a) The satisfied and when the Administrative Agent shall have received (i) counterparts of this Amendment Amendment, executed by the Borrower Borrowers, the Parent and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this AmendmentBanks, (ii) resolutions of the consent attached hereto (the “Consent”) executed by Board of Directors of each of the GuarantorsBorrowers and the Parent authorizing the execution and delivery of this Amendment by the Borrowers and the Parent, (iii) that certain Pledge Agreement executed by Trico Marine International Holdings B.V. in favor or Administrative Agent on behalf of the Lenders dated as of even date herewith, and (iiiiv) a Note that certain promissory note in the original principal amount of $24,574,141 executed by Trico Supply ASA and payable to the order of each Lender requesting Trico Marine International Holdings B.V., endorsed "payable to the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as order of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date▇▇▇▇▇ Fargo Bank Texas, before and after giving effect to this AmendmentNational Association, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement."
Appears in 1 contract
Sources: Revolving Credit Agreement (Trico Marine Services Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (the “Amendment Effective Date”) on whichabove written when, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the ConsentGrantors. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 25 of the Security Agreement. Section 1 hereof shall become effective when, and only when, the Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) in form and substance reasonably satisfactory to the Agent (collectively, the “Amendment Documents”):
(a) The Security Agreement Supplement duly executed by Holdings LLC.
(b) A Guaranty Supplement duly executed by Holdings LLC, supplementing the Subsidiary Guaranty referred to in the Credit Agreement, substantially in the form attached thereto (the “Guaranty Supplement”).
(c) Certified copies of (i) the resolutions of the [Board of Directors] of Holdings LLC approving this Amendment, the Security Agreement Supplement, and the Guaranty Supplement and the matters contemplated hereby, and (ii) all documents evidencing other necessary action and governmental approvals, if any, with respect to the Amendment Documents and the matters contemplated hereby.
(d) A certificate of the Secretary or an Assistant Secretary of Holdings LLC certifying the names and true signatures of the officers of Holdings LLC authorized to sign this Amendment, the other Amendment Documents, and the other documents to be delivered hereunder and thereunder.
(e) A favorable opinion of counsel for Holdings LLC, to the effect that:
(i) Each of the Amendment, the Security Agreement Supplement and Guaranty Supplement, constitutes the valid and binding obligation of Holdings LLC enforceable against Holdings LLC in accordance with its terms.
(ii) Neither the execution, delivery or performance by Holdings LLC of the Amendment, the Security Agreement Supplement or Guaranty Supplement, nor the compliance by Holdings LLC with the terms and provisions thereof will contravene any provision of any Applicable Law of the State of New York or any Applicable Law of the United States of America.
(iii) Holdings LLC is a limited liability company legally existing and in good standing under the laws of the State of Delaware.
(iv) Holdings LLC has the limited liability company power and authority to execute, deliver and perform all of its obligations under the Amendment, the Security Agreement Supplement and Guaranty Supplement, and the execution and delivery of each of the Amendment, the Security Agreement Supplement and Guaranty Supplement has been duly authorized by all requisite limited liability company action by Holdings LLC. The Amendment, the Security Agreement Supplement and Guaranty Supplement have been duly executed and delivered by Holdings LLC.
(v) The execution and delivery by Holdings LLC of the Amendment, the Security Agreement Supplement and Guaranty Supplement, and the performance by Holdings LLC of its obligations under the Amendment, the Security Agreement Supplement and Guaranty Supplement, in accordance with its terms, do not conflict with the Certificate of Formation or Limited Liability Company Agreement of Holdings LLC.
Appears in 1 contract
Sources: Security Agreement (Madison River Communications Corp.)
Conditions of Effectiveness. This Amendment is subject to the provisions of Section 14.11 of the 2005 Credit Agreement. Section 1 of this Agreement shall become effective as of the date first date above written (the “Amendment Effective Date”) on which, when and only ifwhen, each of on or before January 9, 2009, the following conditions precedent Administrative Agent shall have been satisfiedreceived:
(a) The Administrative Agent shall Notice from the administrative agent under the 2004 Credit Agreement that all commitments thereunder have received (i) counterparts of this Amendment executed by the Borrower been terminated and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that all amounts payable or accrued under such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same credit agreement have been paid in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Datefull.
(b) The A security agreement in substantially the form of Annex B hereto (the “Security Agreement”), duly executed by each Credit Party and each Subsidiary listed on Schedule I hereto (collectively with the Credit Parties, the “Granting Parties”), together with:
(i) acknowledgment copies or stamped receipt copies of financing statements, duly filed on or before the Amendment Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may reasonably request in order to perfect and protect the liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(ii) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Collateral Grantors in the jurisdictions contemplated by clause (i) above and copies of the financing statements (or similar documents) disclosed by such search.
(c) A Canadian security agreement in form and substance reasonably satisfactory to the Administrative Agent, duly executed by J▇▇▇▇ Apparel Group Canada, LP, together with evidence of such filings and other actions required under the laws of the applicable jurisdiction that the Administrative Agent may reasonably request in order to perfect the liens and security interests created thereunder.
(d) A certificate from a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, to the effect that all representations and warranties set forth in each of the Loan Documents shall be Borrower contained in the 2005 Credit Agreement are true, correct and complete in all material respects with the same effect as if made on and as of the Amendment Effective Date, before except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); that the Borrower is not in violation of any of the covenants contained in the 2005 Credit Agreement, as amended hereby; that, after giving effect to the transactions contemplated by this Amendment, as though made on no Default or Event of Default has occurred and as is continuing; and that each of such date the conditions to the effectiveness of this Amendment has been satisfied or waived (except for any such representation and warranty that, by its terms, refers to a specific date other than assuming satisfaction of the Amendment Effective Date, in which case as of such specific dateAdministrative Agent where not advised otherwise).
(ce) No event shall have occurred A certificate of the secretary, assistant secretary or general counsel of the Borrower, each Additional Obligor and be continuingeach other Grantor (as defined in the Security Agreement) certifying as to the incumbency and genuineness of the signature of each officer of such Person executing this Amendment or each other Loan Document to which it is a party and certifying that attached thereto is a true, or shall result from correct and complete copy of resolutions duly adopted by the effectiveness Board of Directors of such Person authorizing, in the case of the Borrower, the borrowings contemplated under the 2005 Credit Agreement, as amended hereby, and in the case of each such Person, the execution, delivery and performance of this Amendment, that constitutes Amendment or the Loan Documents to which it is to be a Defaultparty.
(df) All Favorable opinions of I▇▇ ▇. ▇▇▇▇▇▇, General Counsel to the Borrower, Cravath, Swaine & M▇▇▇▇ LLP, special counsel to the Borrower, S▇▇▇▇▇▇▇ H▇▇▇▇▇▇▇ ▇▇▇▇▇ & L▇▇▇▇ LLP, Pennsylvania counsel to the Borrower, and Drinker B▇▇▇▇▇ & R▇▇▇▇ LLP, New Jersey counsel to the Borrower, C▇▇▇▇▇▇ ▇▇▇▇▇ & B▇▇▇▇▇▇▇▇, Canadian counsel to the Borrower, and such other opinions as may be agreed, addressed to the Administrative Agent and the Lenders with respect to the Borrower, the Loan Documents and such other matters as the Lenders shall reasonably request.
(g) The Borrower shall have paid all accrued fees and expenses of the Joint Lead Arrangers and Joint Bookrunners and the Administrative Agent (including the reasonable accrued fees and expenses of counsel to the Joint Lead Arrangers and Joint Bookrunners) and the amendment fees payable to the Lenders for the Administrative Agent) due and payable on the Amendment Effective Date shall which invoices have been paid in fullreceived.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichset forth above when, and only ifwhen, each of the following conditions precedent Agent shall have been satisfiedreceived (in sufficient copies for each Bank) the following:
(a) The Administrative Agent shall have received (i) counterparts Counterparts of this Amendment executed by the Borrower Borrower, the Guarantor and each Lender or, as to any all of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateBanks.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower approving authorizing this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) of all documents evidencing other necessary corporate action and governmental approvalsand regulatory approvals required to be obtained by it in connection therewith, if anycertified by the Secretary or Assistant Secretary of the Borrower.
(c) Certified copies of the resolutions of the Board of Directors of the Guarantor authorizing this Amendment and of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, with respect certified by the Secretary or Assistant Secretary of the Guarantor.
(d) A favorable opinion of counsel to the Borrower, to the effect set forth in Annex I to this Amendment, Amendment and as to such other matters relating to the Consent and the matters transactions contemplated hereby as any Bank through the Agent may reasonably request.
(e) A favorable opinion of the General Counsel of the Guarantor, to the effect set forth in Annex II to this Amendment and therebyas to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(f) A certificate Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Secretary or an Assistant Secretary of Existing Agreement.
(ig) Evidence that the Borrower certifying the names and true signatures "Expiration Date" of the officers Heat Purchase Contract has been extended to August 27, 1998 and that the "Outside Expiration Date" of the Borrower authorized Heat Purchase Contract has been extended to sign this Amendment and September 1, 2001.
(iih) each Guarantor certifying Such other instruments, opinions or documents as any Bank through the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementAgent may reasonably request.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received on or before the Amendment Effective Date the following, each dated such day (i) counterparts of this Amendment executed by the Borrower unless otherwise specified), in form and each Lender or, as to any of the Lenders, advice substance satisfactory to the Administrative Agent that such Lender has (unless otherwise specified) and in sufficient copies for each Lender:
(i) This Amendment duly executed this Amendment, by the Loan Parties and the other parties hereto.
(ii) the consent attached hereto (the “Consent”) executed by each Certified copies of the Guarantorsresolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under this Amendment and each Loan Document to which it or such Loan Party is or is to be a party.
(iii) A certificate signed by a Note payable to Responsible Officer of the order of each Lender requesting Borrowers, dated the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment Amendment Effective Date, stating that as of the Amendment Effective DateDate the applicable Loan Parties are in compliance with the covenants contained in Section 5.04(b) and (c) of the Loan Agreement, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(iv) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by this Amendment shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by this Amendment.
(v) Any additional information or documentation reasonably requested by the Administrative Agent or the Lenders.
(b) The Borrowers shall have paid all accrued fees of the Administrative Agent and the Lenders and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) in connection with the Loan, this Amendment and the transactions contemplated by the Loan Documents.
(c) The representations and warranties set forth in each of the Loan Documents and in this Amendment shall be correct in all material respects (unless qualified as to materiality or Material Adverse Effect, in which case such representations and warranties shall be correct in all respects) on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(cd) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Sources: Term Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Conditions of Effectiveness. This Amendment Agreement shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, each upon satisfaction of the following conditions precedent shall have been satisfiedprecedent:
(ai) The Administrative Agent shall have received in form and substance satisfactory to Lender four (4) copies of this Agreement duly executed by each Borrower;
(ii) Agent shall have received in form and substance satisfactory to Agent an executed Purchase Agreement and all exhibits and schedules thereto and all other documents and agreements executed in connection therewith;
(iii) BATS and/or CTB shall have obtained all necessary consents with respect to each contract, lease, and agreement being assigned to CTB pursuant to the Purchase Agreement. BATS and CTB hereby covenant that no conditions to effectiveness of the Purchase Agreement shall be waived by BATS or CTB without Agent's prior written consent;
(iv) Agent shall have received an executed Amended and Restated Term Note in the form attached hereto as Exhibit A and (b) Amended and Restated Revolving Credit Note in the form attached hereto as Exhibit B;
(v) Agent shall have received in form and substance satisfactory to Agent a Collateral Assignment executed by BATS with respect to its rights under the Purchase Agreement;
(vi) Each document (including, without limitation, any Uniform Commercial Code financing statement) required by this Agreement or under law or reasonably requested by Agent to be filed, registered or recorded in order to create, in favor of Agent for the ratable benefit of the Lenders, a perfected security interest in or lien upon the Collateral owned by CTB shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation and satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto;
(vii) Agent shall have received a copy of the resolutions in form and substance reasonably satisfactory to Agent, of the Board of Directors of (x) CTB authorizing (1) the execution, delivery and performance of this Agreement and (2) the granting by CTB of the Liens upon the Collateral, certified by the Secretary or an Assistant Secretary of CTB as of the date of this Agreement; and (y) of BATS, TEI, AFA, SEC, WSBS, BN and BAC authorizing (1) the execution, delivery and performance of this Agreement and (2) the addition of CTB as a "Borrower" under the Loan Agreement; and, such certificates shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(viii) Agent shall have received a copy of the Articles or Certificate of Incorporation of CTB, and all amendments thereto, certified by the Secretary of State or other appropriate official of its jurisdiction of incorporation together with copies of the By-Laws of CTB certified as accurate and complete by the Secretary or an Assistant Secretary of CTB;
(ix) Agent shall have received good standing certificates for CTB dated not more than thirty (30) days prior to the date of this Agreement, issued by the Secretary of State or other appropriate official of CTB's jurisdiction of incorporation and each jurisdiction where the conduct of CTB's business activities or the ownership of its properties necessitates qualification;
(x) Agent shall have received the executed legal opinions of Brock, Fensterstock, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC in form and substance satisfactory to Agent regarding the due authorization, enforceability and validity of (i) counterparts this Agreement and (ii) the Purchase Agreement, and the transactions contemplated herein and therein;
(xi) Agent shall have received in form and substance satisfactory to Agent, certified copies of CTB's casualty insurance policies, together with loss payable endorsements on Lender's standard form of loss payee endorsement naming Agent as loss payee, and certified copies of CTB's liability insurance policies, together with endorsements naming Agent as a co-insured;
(xii) Agent shall have received in form and substance satisfactory to Agent all landlord, mortgagee or warehousemen agreements for CTB's existing premises at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and future premises at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Oldsmar, Florida;
(xiii) Agent shall have received the stock certificate issued by CTB in favor of BATS, along with an executive stock power which shall be pledged to Agent under and pursuant to the Pledge Agreement dated January 7, 1997 by and between Agent and BATS;
(A) No litigation, investigation or proceeding before or by any arbitrator or Governmental Body shall be continuing or threatened against any Borrower or against the officers or directors of any Borrower (x) in connection with this Agreement or any of the Transactions contemplated by the CTB Acquisition Agreement and which, in the reasonable opinion of Agent, is deemed material or (y) which if adversely determined, would, in the reasonable opinion of Agent, have a Material Adverse Effect on Borrowers taken as a whole; and (B) no injunction, writ, restraining order or other order of any nature materially adverse to any Borrower, or the conduct of the business of any Borrower, or inconsistent with the due consummation of this Agreement or the CTB Acquisition Agreement shall have been issued by any Governmental Body;
(xv) Agent shall have received an executed Financial Condition Certificate satisfactory in form and substance to it, certifying the solvency of Borrowers on a consolidated basis after giving effect to the transactions contemplated by this Agreement and the CTB Acquisition Agreement and as to Borrowers' financial resources and their ability to meet their obligations and liabilities as they become due;
(xvi) Agent shall have completed Collateral examinations, the results of which shall be satisfactory in form and substance to Agent, of the Receivables, Inventory and General Intangibles of CTB and all books and records in connection therewith;
(xvii) Agent shall have received a copy of the Amendment No. 1 Projections which shall be satisfactory in all respects to Agent;
(xviii) Agent shall have received duly executed agreement(s) establishing the Blocked Account(s) with financial institutions reasonably acceptable to Agent for the collection or servicing of the Receivables and proceeds of the Collateral of CTB;
(xix) Agent shall have received any and all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement; and, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Borrower and each Lender orCollateral, as Agent and its counsel shall deem necessary;
(A) Since January 7, 1997 there shall not have occurred (x) any material adverse change in the financial condition, operations, properties or prospects of Borrowers taken as a whole and Old Cliffco, (y) any material damage or destruction to any of the Lenders, advice satisfactory to Collateral nor any material depreciation in the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, value thereof and (iiiz) any event, condition or state of facts which would reasonably be expected to have a Note payable Material Adverse Effect on Borrowers taken as a whole and Old Cliffco and (B) no representations made or information supplied to Agent shall have been proven to be inaccurate or misleading in any material respect;
(xxi) Agent shall have received a closing certificate signed by the order Chief Financial Officer of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment Borrower dated as of the Amendment Effective Date.
date hereof, stating that (bA) The all representations and warranties set forth in each of the Loan Agreement and the Other Documents shall be are true and correct in all material respects on and as of the Amendment Effective Datesuch date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving Borrowers are on such date in compliance with all the Consent terms and provisions set forth in the Loan Agreement and the matters contemplated hereby and thereby Other Documents and (iiC) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.on such date no Default or Event of Default has occurred or is continuing;
(fxxii) A certificate Agent shall have received a duly executed collateral assignment of the Secretary rights of each of BATS and CTB under the CTB Acquisition Agreement, in form and substance satisfactory to Lender;
(xxiii) Agent shall have reviewed all material contracts of CTB including, without limitation, leases, union contracts, labor contracts, vendor supply contracts, license agreements and distributorship agreements and such contracts and agreements shall be satisfactory in all respects to Agent; and
(xxiv) Agent shall have received such other certificates, instruments, documents and agreements as may reasonably be required by Agent or an Assistant Secretary its counsel, each of (i) the Borrower certifying the names which shall be in form and true signatures of the officers of the Borrower authorized substance satisfactory to sign this Amendment Agent and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementits counsel.
Appears in 1 contract
Sources: Amendment No. 1 and Joinder Agreement (Batteries Batteries Inc)
Conditions of Effectiveness. This Amendment shall become effective as The effectiveness of the first date (Agreement on the “Amendment Effective Date”) on which, and only if, each of Date was subject to the following conditions precedent shall have been satisfiedprecedent:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) counterparts a counterpart of this Amendment executed by Agreement and all other Loan Documents (including, without limitation, the Borrower and each Lender orSecurity Documents) to be delivered on or before the Effective Date, as to any signed on behalf of the Lenders, advice such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission or electronic transmission of a pdf formatted copy of a signed signature page of this Agreement) that such Lender party has executed signed a counterpart of this Amendment, (ii) Agreement and all other Loan Documents to be delivered on or before the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The Agent shall have received a favorable written opinion (addressed to the Agent and the Lenders on the Effective Date and dated the Effective Date) of (i) B▇▇▇ ▇▇▇▇▇ & S▇▇▇ PLC, counsel for the Credit Parties, (ii) H▇▇▇▇▇▇ ▇▇▇▇ LLP, (iii) L▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & L▇▇▇▇▇▇▇ Ltd., (iv) M▇▇▇▇▇▇▇ T▇▇▇▇▇▇▇ LLP, (v) Norton R▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, and (vi) applicable local counsel, each in form reasonably satisfactory to the Agent, covering such matters relating to the Credit Parties, the Loan Documents or the transactions contemplated thereby as the Required Lenders shall reasonably request. The Borrowers hereby request such counsel to deliver such opinions.
(c) The Agent shall have received such documents and certificates as the Agent or its counsel may reasonably request relating to the incorporation, organization, existence and good standing (if applicable) of each of the Credit Parties, the authorization of the transactions contemplated by the Loan Documents and any other legal matters relating to the Credit Parties, the Loan Documents or the transactions contemplated thereby, all in form and substance reasonably satisfactory to the Agent and its counsel.
(d) The Agent shall have received a Borrowing Base Certificate dated the Effective Date, relating to the Fiscal Month ended immediately prior to the Effective Date, and executed by a Financial Officer of the Lead Borrower.
(e) The Agent shall have received a certificate from a Financial Officer of the Lead Borrower, together with such other evidence reasonably requested by the Agent, in each case reasonably satisfactory in form and substance to the Agent, certifying that as of the Effective Date (i) the Credit Parties, on a Consolidated basis, are Solvent, (ii) there has been no event or circumstance since January 28, 2017 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (iii) the representations and warranties set forth made by the Borrowers in each of the Loan Documents shall be are true and correct in all material respects on and as that no event has occurred (or failed to occur) which is or which, solely with the giving of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as notice or passage of such date time (except for any such representation and warranty that, by its terms, refers to or both) would be a specific date other than the Amendment Effective Date, in which case as Default or an Event of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(df) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained and shall be reasonably satisfactory to the Agent, including, without limitation, consents from all requisite material Governmental Authorities and, except as would not reasonably be expected to have or result in a Material Adverse Effect, all third parties shall have approved or consented to the transactions contemplated hereby, to the extent required, all applicable waiting periods shall have expired and there shall be no material governmental or judicial action, actual or threatened, that would reasonably be expected to materially restrain, prevent or impose burdensome conditions on the transactions contemplated hereby.
(g) The Agent shall be reasonably satisfied that any financial statements delivered to it and the Lenders fairly present the business and financial condition of the Borrower Consolidated Group (subject, in the case of interim financial statements, to year-end adjustments and the absence of footnotes) and that there has been no Material Adverse Effect since January 28, 2017.
(h) Except as set forth on Schedule 3.6, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect.
(i) There shall not have occurred any event of default, nor shall any event exist which is, or solely with the passage of time, the giving of notice or both, would be an event of default under any Material Indebtedness.
(j) The Agent shall have received results of searches from such jurisdictions as may be reasonably required by the Agent or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the Collateral, including, without limitation, receivables from credit card processors and check processors, except for Liens permitted by Section 6.2 and Liens for which termination statements, estoppel certificates and releases reasonably satisfactory to the Agent are being tendered on the Effective Date.
(k) The Agent shall have received all documents and instruments, including Uniform Commercial Code and PPSA financing statements, and certified statements issued by the Quebec Register of Personal and Movable Real Rights, required by law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents (or to extend such filings) and, to the extent required by the Agent, all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent.
(l) The Agent shall have received Account Control Agreements, the Credit Card Notifications, Collateral Control Agreements, and other similar third party agreements required to be delivered hereunder on or before the Effective Date.
(m) All fees due to the Agent and Lenders at or immediately after the Effective Date and all reasonable costs and expenses incurred by the Agent in connection with the establishment of the Administrative Agent credit facility contemplated hereby (including the reasonable and documented out-of-pocket fees and expenses of counsel for to the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(en) Certified copies of (i) the resolutions The consummation of the Board transactions contemplated hereby shall not (a) violate any Applicable Law, or (b) conflict with, or result in a default or event of Directorsdefault under, general partner any material agreement of Borrowers or managing memberany other Credit Party, taken as applicable, of a whole (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent Agent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvalsLenders shall receive a satisfactory opinion of Borrowers’ counsel to that effect). No event shall exist which is, if any, or solely with respect to this Amendmentthe passage of time, the Consent and giving of notice or both, would be an event of default under any agreement of any of the matters contemplated hereby and therebyCredit Parties if such event of default could reasonably be expected to have a Material Adverse Effect.
(fo) A certificate There shall be no Default or Event of Default on the Effective Date.
(p) The Agent shall have received, and be reasonably satisfied with, evidence of the Secretary or an Assistant Secretary of Borrowers’ insurance, together with such endorsements as are required by the Loan Documents.
(iq) the Borrower certifying the names and true signatures The Agent shall have received all of the officers items set forth on the Closing Agenda attached hereto as Exhibit F.
(r) The Agent and the Lenders shall have received and be satisfied with (a) a detailed forecast for the period commencing with the Fiscal Year beginning January 29, 2017 and ending on the Maturity Date, which shall include a Consolidated income statement, profit and loss statement, balance sheet, and statement of cash flow, prepared on an annual basis, each prepared in conformity with GAAP and consistent with the Borrowers’ then current practices, (b) a monthly Excess Availability analysis for the thirteen (13) month period following the Effective Date, and (c) such other information (financial or otherwise) reasonably requested by the Agent.
(s) The Borrowers shall have Excess Availability on the Effective Date, after giving effect to any Credit Extensions made on the Effective Date, of not less than $150,000,000.
(t) The Agent and each Lender shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and the Proceeds of Crime Act.
(u) There shall have been delivered to the Agent such additional instruments and documents as the Agent or counsel to the Agent reasonably may require or request. The Agent shall notify the Lead Borrower and the Lenders of the Borrower authorized to sign this Amendment Effective Date, and (ii) each Guarantor certifying the names such notice shall be conclusive and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementbinding.
Appears in 1 contract
Sources: Credit Agreement (Genesco Inc)
Conditions of Effectiveness. This Ninth Amendment shall will become effective as of on the first date (the “Amendment Effective Date”) on which, and only if, which each of the following conditions precedent shall have been satisfied:is satisfied or waived in accordance with Section 12.02 of the Credit Agreement (the “Ninth Amendment Effective Date”):
(a) 3.1 The Administrative Agent shall have received from the Borrower, PEI, each Guarantor, the Issuing Bank and each of the Lenders, counterparts (iin such number as may be requested by the Administrative Agent) counterparts of this Ninth Amendment executed signed on behalf of such Person.
3.2 The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the Ninth Amendment Effective Date, including all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement (including reasonable and documented out-of-pocket fees and expenses invoiced by ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP at least two (2) Business Days prior to the Ninth Amendment Effective Date).
3.3 The Administrative Agent shall have received a certificate of the Secretary, Assistant Secretary or a Responsible Officer of the Borrower and each Lender or, as to any Guarantor each setting forth (i) resolutions of the Lendersmembers, advice satisfactory board of directors or other appropriate governing body with respect to the Administrative Agent that authorization of the Borrower or such Lender has executed this AmendmentGuarantor to execute and deliver the Loan Documents to which it is a party and to enter into the transactions contemplated in those documents, (ii) the consent attached hereto (the “Consent”) executed by each officers of the GuarantorsBorrower or such Guarantor (A) who are authorized to sign the Loan Documents to which the Borrower or such Guarantor is a party and (B) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the transactions contemplated hereby, (iii) specimen signatures of such authorized officers, and (iiiiv) a Note payable the partnership agreement, the limited liability company agreement, the articles or certificate of incorporation and bylaws or other applicable organizational documents of the Borrower and such Guarantor certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to the order contrary.
3.4 The Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of the Borrower and each Guarantor.
3.5 The Administrative Agent shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Borrower and the other Loan Parties, in form and substance satisfactory to the Administrative Agent.
3.6 Each Exiting Lender requesting the same in a principal shall have received an amount equal to all outstanding principal owing to such Lender’s respective Revolving Credit Commitment Exiting Lender as of the Ninth Amendment Effective Date.
(b) 3.7 The representations Administrative Agent shall have received such other documents as the Administrative Agent or its special counsel may reasonably require. The Administrative Agent shall, and warranties is hereby authorized and directed to, declare this Ninth Amendment to be effective when it has received documents confirming compliance with the conditions set forth in each this Section 3 or the waiver of such conditions as agreed to by the Loan Documents Majority Lenders. Such declaration shall be correct in final, conclusive and binding upon all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject parties to the provisions of Section 9.01 of the Credit AgreementAgreement for all purposes.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (the “Amendment Effective Date”) on whichabove written when, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender or, the Required Lenders (or as to any of the LendersLender Parties, advice satisfactory to the Administrative Agent that such Lender party has executed this Amendment, (ii) and counterparts of the consent attached hereto (the “"Consent”") executed by each Guarantor Subsidiary. Section 1 hereof shall become effective when, and only when, the Agent shall have additionally received all of the Guarantorsfollowing documents, in form and (iii) a Note payable substance satisfactory to the order of Agent and insufficient copies for each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.party:
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(ea) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving Subsidiary evidencing approval of the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower and each Guarantor Subsidiary certifying the names and true signatures of the officers of the Borrower and each Guarantor Subsidiary authorized to sign this Amendment and the Consent and the other documents to be delivered hereunder and thereunder.
(c) A favorable opinion of corporate counsel for the Borrower, to the effect that this Amendment has been duly authorized, executed and delivered by the Borrower and a favorable opinion of corporate counsel for the Guarantor Subsidiaries to the effect that the Consent has been duly authorized, executed and delivered by each Guarantor Subsidiary.
(d) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) The representations and warranties contained in each Loan Document are correct on and as of the date of such certificate as though made on and as of such date other than any such representations or warranties that, by their terms, refer to a date other than the date of such certificate; and
(ii) each Guarantor certifying the names No event has occurred and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementcontinuing that constitutes a Default.
Appears in 1 contract
Conditions of Effectiveness. This Third Amendment shall will become effective as of on the first date (the “Amendment Effective Date”) on which, and only if, which each of the following conditions precedent shall have been satisfied:is satisfied or waived in accordance with Section 12.02 of the Credit Agreement (the “Third Amendment Effective Date”):
(a) 4.1 The Administrative Agent shall have received from the Borrower, PEI, each Guarantor, the Issuing Bank and the Lenders, counterparts (in such number as may be requested by the Administrative Agent) of this Third Amendment signed on behalf of such Person.
4.2 The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the Third Amendment Effective Date, including all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement (including fees and expenses invoiced by ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP).
4.3 The Administrative Agent shall have received duly executed (i) counterparts of this Amendment executed by Assumption Agreements, pursuant to which Double Eagle Lone Star LLC, a Delaware limited liability company, DE Operating LLC, a Delaware limited liability company, Veritas Energy Partners, LLC, a Delaware limited liability company, and Novus Land Services LLC, a Delaware limited liability company (collectively, the Borrower and each Lender or“Acquired Entities”), as to any of the Lenders, advice satisfactory shall become party to the Administrative Agent that such Lender has executed this AmendmentGuaranty Agreement, (ii) Supplements to the consent attached hereto (Guaranty Agreement, pursuant to which the “Consent”) executed by each Borrower shall pledge 100% of the Guarantors, Equity Interests in the Acquired Entities and (iii) a Note payable certificate of the Secretary or Assistant Secretary of each of the Acquired Entities certifying as to the order incumbency and genuineness of the signature of each Lender requesting Responsible Officer of each of the same Acquired Entities executing Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles or certificate of incorporation or formation (or equivalent), as applicable, of each of the Acquired Entities and all amendments thereto, certified by the appropriate Governmental Authority (to the extent available) in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, (B) the bylaws, partnership agreement, limited liability company agreement or other governing document of each of the Acquired Entities (including all amendments thereto), (C) resolutions duly adopted by the board of directors (or other governing body) of each of the Acquired Entities authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of the Loan Documents to which it is a principal amount equal party, and (D) a certificate as to such Lender’s respective Revolving Credit Commitment the good standing of each of the Acquired Entities under the laws of its jurisdiction of organization.
4.4 The Administrative Agent shall have received the Reserve Report prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Associates, Inc., dated as of January 27, 2017, with respect to certain the Oil and Gas Properties of the Loan Parties (including, for the avoidance of doubt, the Acquired Entities) as of December 31, 2016.
4.5 No Default or Event of Default shall have occurred and be continuing as of the Third Amendment Effective Date.
(b) 4.6 The representations Administrative Agent shall have received such other documents as the Administrative Agent or its special counsel may reasonably require. The Administrative Agent is hereby authorized and warranties directed to declare this Third Amendment to be effective when it has received documents confirming compliance with the conditions set forth in each this Section 4 or the waiver of such conditions as agreed to by the Loan Documents Majority Lenders. Such declaration shall be correct in final, conclusive and binding upon all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject parties to the provisions of Section 9.01 of the Credit AgreementAgreement for all purposes.
Appears in 1 contract
Conditions of Effectiveness. This Amendment Agreement, and the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit shall, shall become effective on and as of the first date (the “Amendment Effective Date”) on which, and only if, each of which the following conditions precedent shall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) counterparts a counterpart of this Amendment executed by the Borrower and each Lender orAgreement signed on behalf of such party, as to any of the Lenders, advice or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such Lender party has executed signed a counterpart of this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateAgreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the L/C Issuers and the Lenders and dated the Closing Date) of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the initial Borrowers, covering such matters relating to the Borrowers, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such customary documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the initial Borrowers and the authorization of the Transactions all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying (i) that the representations and warranties set forth contained in each of the Loan Documents shall be Article V are true and correct in all material respects on (or, with respect to representations and as of the Amendment Effective Datewarranties that contain a materiality qualification, before are true and after giving effect to this Amendment, as though made on and correct in all respects) as of such date (date, except for any to the extent that such representation representations and warranty that, by its terms, refers warranties specifically refer to a specific date other than the Amendment Effective Datean earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties that contain a materiality qualification, are true and correct in all respects) as of such specific earlier date).
, and (cii) No event shall have that no Default or Event of Default has occurred and be continuing, or shall result from the effectiveness is continuing as of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in fullsuch date.
(e) Certified copies The Administrative Agent shall have received evidence reasonably satisfactory to it that the credit facility evidenced by the Existing Credit Agreement shall have been or will be substantially concurrently with the effectiveness of (i) this Agreement terminated and cancelled and all indebtedness thereunder shall have been or will be substantially concurrently with the resolutions effectiveness of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment Agreement fully repaid and the matters contemplated hereby any and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvalsliens thereunder, if any, have been or will be substantially concurrently with respect to the effectiveness of this Amendment, the Consent Agreement terminated and the matters contemplated hereby and therebyreleased.
(f) A certificate The Administrative Agent (or the applicable Arranger, if such fees are paid directly to such Arranger) shall have received all fees and other amounts due and payable to the Administrative Agent, the Lenders and the Arrangers on or prior to the Closing Date, including, to the extent invoiced three Business Days prior to the Closing Date (or such shorter period of time as is agreed by the Secretary Company), reimbursement or an Assistant Secretary payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
(ig) At least three (3) Business Days prior to the Closing Date, the initial Borrowers shall have provided to the Administrative Agent and each Lender the documentation and other customary information reasonably requested by the Administrative Agent or such Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If any initial Borrower certifying qualifies as a “legal entity customer” under the names and true signatures Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender, shall have received a Beneficial Ownership Certification in relation to such Borrower. Without limiting the generality of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 9.03 or Section 9.04, for purposes of determining compliance with the Credit Agreementconditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Revvity, Inc.)
Conditions of Effectiveness. This (a) The effectiveness of Sections 2 and 3 of this Amendment shall become effective as be subject to the satisfaction of the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfiedprecedent:
(a1) The Administrative Agent shall have received from each Loan Party and the Majority Lenders a duly executed original (or, if elected by the Agent, an executed facsimile copy) of this Amendment.
(2) The Agent shall have received the consent of each Guarantor in its capacity as such to the execution and delivery hereof by the Company.
(3) The Agent shall have received evidence of payment by the Company of all fees, costs and expenses due and payable as of the Effective Date hereunder and under the Credit Agreement, including any fees arising under or referenced in Section 6 of this Amendment and any costs and expenses payable under Section 7(g) of this Amendment (including the Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(4) The Agent shall have received from the Company an Update Certificate (as to each Loan Party), substantially in the form of Exhibit H to the Credit Agreement, dated the Effective Date and otherwise in form and substance satisfactory to the Agent, covering the period from the last day of the "Reporting Period" covered by the most recent Update Certificate furnished to the Agent and the Lenders pursuant to subsection 6.01(f) of the Credit Agreement through the Effective Date.
(5) The Agent shall have received evidence satisfactory to it that all actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken, including, without limitation, (i) counterparts the Agent's receipt of this Amendment executed by acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the Borrower and each Lender or, as to any security interests of the Agent for the benefit of the Lenders, advice or other evidence satisfactory to the Administrative Agent that such Lender there has executed this Amendmentbeen filed, registered or recorded (or arrangements made with a reputable filing service to file, register or record) all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Agent for the benefit of the Lenders in accordance with applicable law, (ii) the consent attached hereto Agent's receipt of written advice relating to such Lien and judgment searches as the Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (the “Consent”) executed by each of the Guarantorsother than Permitted Liens), and (iii) the Agent's receipt of all certificates and instruments representing the Pledged Shares, together with stock transfer powers executed in blank as the Agent or the Lenders may specify.
(6) The Agent shall have received from each of the Company and Holdings a Note payable to copy of the order resolutions passed by the board of each Lender requesting the same in a principal amount equal to directors of such Lender’s respective Revolving Credit Commitment Person, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Person, authorizing the execution, delivery and performance of this Amendment and the Credit Agreement (as amended by this Amendment).
(7) The Agent shall have received an opinion of counsel to the Company and addressed to the Agent and the Lenders, dated the Effective Date, in form and substance satisfactory to the Agent.
(8) The Agent shall have received all other documents it or any Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory to the Agent and each Lender.
(9) The representations and warranties in Section 4 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(b) The representations and warranties set forth For purposes of determining compliance with the conditions specified in subsection 5(a) above, each of the Loan Documents Lender that has executed this Amendment shall be correct in all material respects on and as of the Amendment Effective Datedeemed to have consented to, before and after giving effect approved or accepted, or to this Amendmentbe satisfied with, as though each document or other matter either sent, or made on and as of such date (except available for any such representation and warranty thatinspection, by its termsthe Agent to such Lender for consent, refers approval, acceptance or satisfaction, or required thereunder to a specific date other than the Amendment Effective Date, in which case as of be consented to or approved by or acceptable or satisfactory to such specific date)Lender.
(c) No event From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall have occurred remain unchanged and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Defaultin full force and effect and is hereby ratified and confirmed in all respects.
(d) All The Agent will notify the Company and the Lenders of the fees and expenses occurrence of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the ConsentDate. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein7. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.8
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent Bank shall have received (i) counterparts of this Amendment executed by the Borrower and each Lender orthe Bank, as to any and Section 1 hereof shall become effective when, and only when, the Bank shall have additionally received all of the Lendersfollowing documents, advice each document (unless otherwise indicated) being dated the date of receipt thereof by the Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has Bank:
(a) The executed this Amendment, (ii) Amended and Restated Note in the consent attached hereto (the “Consent”) executed by each form of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateEXHIBIT A hereto.
(b) The representations executed Amended and warranties set forth Restated Pledge Agreement in each the form of EXHIBIT B hereto, together with certificates representing the Loan Documents shall be correct Pledged Shares referred to therein, accompanied by undated stock powers executed in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date)blank.
(c) No event shall have occurred and be continuing, or shall result from The executed Fifth Warrant in the effectiveness form of this Amendment, that constitutes a DefaultEXHIBIT C hereto.
(d) All The executed Amended and Restated Registration Rights Agreement in the form of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in fullEXHIBIT D hereto.
(e) Evidence of all applicable insurance regulatory approvals, if any, which are necessary or required in connection with the Borrower's execution, delivery and performance of the Loan Documents.
(f) A schedule of insurance then in effect pursuant to Section 7.5 of the Existing Credit Agreement.
(g) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Amendment and the matters contemplated hereby and therebyhereby.
(fh) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower Borrower, authorized to sign this Amendment and the other documents to be delivered hereunder.
(iii) A certificate of existence for each Guarantor certifying the names and true signatures of the officers Borrower, Standard Life, Standard Marketing and ▇▇▇▇▇ National and Savers Life Insurance Company.
(j) A favorable opinion of counsel for the Borrower (which may be delivered by in-house counsel) to the effect that this Amendment, and the Amended and Restated Note have been duly authorized, executed and delivered by the Borrower, and such instruments constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, with references therein to the Credit Agreement to mean the Existing Credit Agreement as amended by this Amendment.
(k) A certificate signed by a duly authorized officer of each Borrower stating that:
(i) The representations and warranties contained in herein, in Article 6 of the Existing Credit Agreement and in each other Loan Document are true and correct on and as of the date of such Guarantor authorized certificate as though made on and as of such date; (ii)No event has occurred and is continuing which constitutes a Default or Event of Default; and (iii)There has been no material adverse change in the business, management, operations, properties, prospects or condition (financial or otherwise) of the Borrower or any of its respective Affiliates or Subsidiaries since March 8, 1998.
(l) Payment to sign the Consent. The effectiveness Bank of the Closing Fee pursuant to Section 1 (a)(iii) of this Amendment is conditioned upon Amendment.
(m) Any other closing items reasonably required by the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementBank.
Appears in 1 contract
Sources: Revolving Line of Credit Agreement (Standard Management Corp)
Conditions of Effectiveness. This Sixth Amendment shall become --------------------------- effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent Bank shall have received (i) counterparts a counterpart of this Sixth Amendment executed by the Borrower and each Lender orshall have additionally received, as to any of the Lenders, advice in form and substance satisfactory to the Administrative Agent that such Lender has executed this Amendment, Bank:
(iia) A certificate of a Senior Officer of the Borrower stating that:
(i) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties set forth contained in each Article 5 of the Loan Documents shall be Credit Agreement are correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, date of such certificate as though made on and as of such date (except for any or, if such representation and or warranty that, by its terms, refers is expressly stated to have been made as of a specific date other than the Amendment Effective Datedate, in which case as of such specific date);
(ii) other than the Events of Default identified in Section 2(a) above, no Event of Default or Default has occurred and is continuing or would result from the signing of this Sixth Amendment or the transactions contemplated thereby; and
(iii) there has been no material adverse change in the financial condition, operations, Properties, business or business prospects of the Borrower and its Subsidiaries, if any, since March 31, 1999.
(b) A Revolving Note for the account of the Bank duly executed by the Borrower.
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower, dated the Amendment Closing Date, attesting on behalf of the Borrower certifying to all corporate action taken by the Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of this Sixth Amendment, the Revolving Note and each other document to be delivered pursuant to this Sixth Amendment, and attesting to the names and true signatures of the officers of the Borrower authorized to sign this Sixth Amendment, the Revolving Note and the other documents to be delivered by the Borrower under this Sixth Amendment.
(d) The US Holdings Guaranty duly executed by US Holdings, Inc.
(e) A certificate of the Secretary or Assistant Secretary of US Holdings, Inc., dated the date of the Amendment Closing Date, attesting on behalf of US Holdings, Inc. to all corporate action taken by it, including resolutions of its Board of Directors authorizing the execution, delivery and (ii) performance of the US Holdings Guaranty and each Guarantor certifying other document to be delivered pursuant to the US Holdings Guaranty, and attesting that its Certificate of Incorporation and Bylaws are in full force and effect and are attaching true and correct copies of such documents and attesting to the names and true signatures of the officers of such Guarantor US Holdings, Inc. authorized to sign the Consent. The effectiveness US Holdings Guaranty and the other documents delivered by US Holdings, Inc. and
(f) A certificate of this Amendment is conditioned upon good standing, including a tax good standing, for US Holdings, Inc. from the accuracy Secretary of the factual matters described hereinState of the state of its incorporation.
(g) A favorable opinion of ▇.▇. This Amendment is subject ▇▇▇▇, Professional Law Corporation, counsel to the provisions Borrower, dated the effective date hereof, in form and substance satisfactory to the Bank and its special counsel.
(h) Payment to the Bank of Section 9.01 an amendment fee in the amount of $37,500.
(i) Payment to Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the Credit AgreementBank, of its legal fees and disbursements.
(j) All information and documents relating to the Borrower, as the Bank may reasonably request, all in form and substance satisfactory to the Bank and its special counsel.
Appears in 1 contract
Sources: Credit Agreement (Centris Group Inc)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichset forth above when, and only ifwhen, each of the following conditions precedent Agent shall have been satisfiedreceived (in sufficient copies for each Bank) the following:
(a) The Administrative Agent shall have received (i) counterparts Counterparts of this Amendment executed by the Borrower Borrower, the Guarantor and each Lender or, as to any all of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateBanks.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower approving authorizing this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) of all documents evidencing other necessary corporate action and governmental approvalsand regulatory approvals required to be obtained by it in connection therewith, if anycertified by the Secretary or Assistant Secretary of the Borrower.
(c) Certified copies of the resolutions of the Board of Directors of the Guarantor authorizing this Amendment and of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, with respect certified by the Secretary or Assistant Secretary of the Guarantor.
(d) A favorable opinion of counsel to the Borrower, to the effect set forth in Annex I to this Amendment, Amendment and as to such other matters relating to the Consent and the matters transactions contemplated hereby as any Bank through the Agent may reasonably request.
(e) A favorable opinion of the General Counsel or Associate General Counsel of the Guarantor, to the effect set forth in Annex II to this Amendment and therebyas to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(f) A certificate Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Secretary or an Assistant Secretary Existing Agreement.
(g) Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Multi-Year Credit Agreement, dated as of September 1, 1993, as amended, among the Borrower, the Guarantor, the banks party thereto and the Agent.
(h) Evidence that the "Expiration Date" of the Heat Purchase Contract has been extended to August 23, 2001.
(i) Such other instruments, opinions or documents as any Bank through the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementAgent may reasonably request.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective on and as of the first date (such date, the “Amendment No. 3 Effective Date”) on which, and only if, each upon which all of the following conditions precedent set forth in this Section 4 shall have been satisfied:
(a) The Receipt by Administrative Agent shall have received (i) of counterparts of this Amendment duly executed by the Borrower Borrower, Lenders and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateAgent.
(b) The On the Amendment No. 3 Effective Date after giving effect to this Amendment, (i) each of the representations and warranties set forth contained in each Section 4 of the Loan Documents shall be Existing Credit Agreement are true and correct in all material respects on and as of the Amendment No. 3 Effective DateDate (except for those representations and warranties that are conditioned by materiality, before which are true and after giving effect correct in all respects) to this Amendment, the same extent as though made on and as of such date (date, except for any to the extent such representation representations and warranty that, by its terms, refers warranties specifically relate to a specific date other than the Amendment Effective Datean earlier date, in which case such representations and warranties were true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which were true and correct in all respects) on and as of such specific earlier date).
, (cii) No no event shall have occurred and be continuing, continuing or shall would result from the effectiveness consummation of this AmendmentAmendment that would constitute an Event of Default under the Existing Credit Agreement.
(c) The Administrative Agent (as defined in the Credit and Guaranty Agreement) shall have received from OpCo a one-time prepayment of the Term Loan (as defined in the Credit and Guaranty Agreement) under the Credit and Guaranty Agreement in an amount equal to $10,500,000, that constitutes a Defaultsuch prepayment to be applied in the same manner as set forth in Section 2.10(a) of the Credit and Guaranty Agreement.
(d) All of the fees and expenses of the Holdings, OpCo, Administrative Agent (including and Lenders party to the reasonable fees Credit and expenses of counsel for Guaranty Agreement will have executed and delivered an amendment to the Credit and Guaranty Agreement in form and substance reasonably satisfactory to Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment (a) The Agreement shall become effective as of the first date (Effective Date of this Agreement upon the “Amendment Effective Date”) on which, and only if, each satisfaction of all of the following conditions precedent shall have been satisfiedconditions:
(ai) The Borrowers shall have delivered to Administrative Agent shall have received an original (ior executed faxed or electronic copy) counterparts of this Amendment executed by the Borrower and each Lender orAgreement, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) duly executed by each of the Guarantors, Loan Parties;
(ii) Borrowers shall have delivered to Administrative Agent a fully executed copy of the Merger Agreement and any amendments thereto;
(iii) a Note payable to each of the order representations and warranties contained in Section 6 of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment this Agreement shall be true, correct and accurate as of the Amendment Effective Datedate of this Agreement; and
(iv) the receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Agreement or any of the transactions arising hereunder or otherwise related hereto or referred to herein, including any actual out-of-pocket costs, expenses, charges or expenses of Administrative Agent and the reasonable fees, charges and disbursements of counsel for Administrative Agent.
(b) The representations parties hereto specifically acknowledge and warranties set forth agree that: (i) the execution and delivery of this Agreement shall not be deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the other Loan Documents. Except as expressly amended pursuant hereto, the Existing Loan Agreement and each of the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed in all respects, and the Collateral described in the Loan Documents shall be correct in all material respects on and as continue to secure the Obligations. Each of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of Guarantors party hereto: (i) specifically consents to the resolutions terms of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and Agreement; (ii) reaffirms its obligations under its Guaranty and under all documents evidencing other necessary corporate action Loan Documents to which it is a party; (iii) reaffirms the waivers of each and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate every one of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names defenses to such obligations as set forth in such Guaranty and true signatures of the officers of the Borrower authorized to sign this Amendment each such other Loan Document; and (iiiv) reaffirms that its obligations under such Guaranty and each Guarantor certifying such other Loan Document are separate and distinct from the names and true signatures obligations of any other party under the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit AgreementLoan Documents.
Appears in 1 contract
Sources: Loan and Security Agreement (Danimer Scientific, Inc.)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichhereof when, and only ifwhen, each of the following conditions precedent Administrating Bank shall have been satisfied:
received: (a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower Company, the Administrating Bank, the Funding Bank and each Lender orof the Participating Banks (in sufficient quantity for each party to have a fully executed original), (b) for the account of each Participating Bank, an upfront fee in the amount agreed upon by the Company and such Participating Bank, as notified in writing by the Company to any the Administrating Bank on or before the date hereof, (c) for the account of the LendersAdministrating Bank, advice the fees set forth in that certain Second Amended and Restated Fee Letter, dated the date hereof, between the Company and the Administrating Bank, to the extent that such fees are due and payable on the effective date of this Amendment, and (d) all of the following documents, each document being dated the date of receipt thereof by the Administrating Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has executed Administrating Bank:
(i) An opinion of M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇, LLP, as New York counsel to the Company.
(ii) An opinion of Friday, E▇▇▇▇▇▇▇ & C▇▇▇▇, LLP, as Arkansas counsel to the Company.
(iii) Copies of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this Amendment, (ii) certified by the consent attached hereto (the “Consent”) executed by each Secretary or an Assistant Secretary of the GuarantorsCompany (which certificate shall state that such resolutions are in full force and effect as of such date and have not been modified, rescinded or amended since the date of adoption thereof).
(iv) Certified copies of all approvals, authorizations, orders or consents of, or notices to or registrations with, any governmental body or agency required for the Company to execute, deliver and perform its obligations under this Amendment.
(v) Certificates as to the good standing of the Company, as of a recent date, from the Secretary of State of the State of Arkansas and the Secretary of State of the State of Mississippi.
(vi) A certificate of the Secretary or Assistant Secretary of the Company certifying (A) that attached thereto is a true and complete copy of the by-laws of the Company as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (iii) above, (B) that (x) attached thereto is a true and complete copy of the certificate or articles of incorporation, including all amendments thereto, of the Company and (y) such certificate or articles of incorporation have not been amended since the date of the last amendment thereto, and (iiiC) a Note payable as to the order incumbency and specimen signature of each Lender requesting the same officer executing this Amendment or any other document or certificate delivered in a principal amount equal to such Lender’s respective Revolving Credit Commitment as connection herewith on behalf of the Amendment Effective DateCompany; together with a certificate of another officer of the Company as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the foregoing certificate.
(bvii) The consent of Entergy Corporation, Entergy Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc. and Entergy New Orleans, Inc., in substantially the form of Exhibit A hereto, duly executed by an authorized officer thereof.
(viii) A certificate of a duly authorized officer of the Company (the statements in which shall be true) stating that (A) the representations and warranties set forth contained in each Section 10 of the Loan Documents shall be Amended Agreement are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, such date as though made on and as of such date (except for any such representation and warranty thatdate, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving no Reimbursement Default, Prepayment Event, Event of Default, Indenture Event of Default, Event of Loss or Deemed Loss Event has occurred and is continuing and no Reimbursement Default, Prepayment Event, Event of Default, Indenture Event of Default, Event of Loss or Deemed Loss Event will result from the Consent execution, delivery and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness performance of this Amendment is conditioned upon or the accuracy consummation of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreementtransactions contemplated thereby.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Entergy Texas, Inc.)
Conditions of Effectiveness. This The amendments to the Credit Agreement set forth in Section 2 of this Amendment shall become be effective as of on the first date (the “Amendment Effective Date”) on which, and only if, each of provided that the following conditions precedent Administrative Agent shall have been satisfiedreceived the following:
(a) The Administrative Agent shall have received (i) counterparts a counterpart of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantorsparties hereto (which may be by telecopy transmission);
(b) to the extent requested by any Lender, and (iii) a Note payable to the order of each Lender requesting the same in a maximum principal amount equal to such Lender’s respective Revolving Credit Commitment Commitment, which Note, to the extent delivered in favor of an Existing Lender, shall be a renewal and replacement of, and shall be given in substitution and exchange for, but not in payment of, those Notes held by such Existing Lender prior to the date hereof;
(c) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officer as the Administrative Agent may reasonably require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment;
(d) a certificate from the appropriate governmental authority in the Borrower’s state of organization evidencing that the Borrower is in good standing, and a certificate of a Responsible Officer certifying that no amendments have been made to the Borrower’s Organization Documents since January 24, 2003, or if such amendments have been made, certifying a copy of such amendments;
(e) a certificate of a Responsible Officer certifying that there has been no event or circumstance since the date of the financial statements dated as of December 31, 2004 delivered pursuant to Section 6.01(a) of the Credit Agreement which has or could reasonably be expected to have a Material Adverse Effect;
(f) an opinion of counsel to the Borrower with respect to the Credit Agreement as amended, substantially in the form attached as Exhibit E to the Credit Agreement;
(g) all upfront fees, other fees, and expenses that are required to be paid by the Borrower concurrently with the Amendment Effective Date.; and
(bh) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and such other assurances, certificates, documents, consents or opinions as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent L/C Issuer, or the Required Lenders reasonably may require and the matters contemplated hereby and therebytimely request.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as The effectiveness of this Agreement and the occurrence of the first date Closing Date are subject to satisfaction (or waiver by the “Amendment Effective Date”Administrative Agent) on which, and only if, each of the following conditions precedent shall have been satisfiedon or prior to the Closing Date:
(a) The Administrative Agent shall have received (i) counterparts Agent’s receipt of this Amendment the following, each properly executed by a Responsible Officer of the Borrower signing Loan Party and each Lender or, as to any of the Lenders, advice in form and substance reasonably satisfactory to the Administrative Agent that such Lender has and each of the Lenders:
(i) executed counterparts of this Amendment, Agreement by the Top Borrower and the Administrative Agent;
(ii) the consent attached hereto a Note (the “Consent”or Notes) executed by each of the Guarantors, Top Borrower and (iii) a Note payable to dated the order Closing Date in favor of each Lender requesting a Note (or Notes);
(iii) the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment Guaranty, dated as of the Amendment Effective Closing Date, duly executed by each Guarantor;
(iv) the Security Agreement, dated as of the Closing Date, duly executed by each Loan Party, together with:
(A) agreed forms of Uniform Commercial Code financing statements (Form UCC-1), naming each of the Loan Parties (as appropriate) as the debtor, and the Administrative Agent on behalf of the Secured Parties, as the secured party;
(B) Uniform Commercial Code termination statements necessary to release all Liens and other rights of any Person securing any existing Liens (other than Permitted Liens);
(C) a perfection certificate duly executed by each Loan Party;
(D) lien search results covering the Loan Parties, dated a date reasonably near to the Closing Date;
(E) certificates representing the pledged securities referred to therein accompanied by undated stock powers executed in blank; and
(F) intellectual property security agreements in respect of Patents, Trademarks and Copyrights (each as defined in the Security Agreement) owned by the Loan Parties on the Closing Date;
(v) insurance certificates evidencing the liability and property insurance covering the Loan Parties;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where such Person is qualified to do business;
(viii) favorable opinions of (w) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, corporate counsel to the Loan Parties, (x) Squire ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, Arizona counsel to the Loan Parties, (y) ▇▇▇▇▇▇ White ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLC, Alaska counsel to the Loan Parties and (z) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ PC, Nevada counsel to the Loan Parties, in each case, addressed to the Administrative Agent;
(ix) [reserved];
(x) a certificate signed by a Responsible Officer of the Top Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xi) (i) the Audited Financial Statements and (ii) unaudited consolidated balance sheet of the Top Borrower and its Restricted Subsidiaries dated as of March 31, 2021, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarters ended on these dates (“Unaudited Financial Statements”);
(xii) solvency certificate from the chief financial officer or another officer with equivalent duties of the Top Borrower certifying that the Top Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the transactions contemplated hereby and the use of proceeds of the Loans made to the Top Borrower on the Closing Date, are Solvent; and
(xiii) the Loan Parties shall have provided or caused to be provided the documentation and other information to the Lenders that are reasonably required by the applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, in each case, at least three Business Days prior to the Closing Date, to the extent that the Arrangers or the Lenders, as applicable, have reasonably requested such items in writing at least 10 Business Days prior to the Closing Date.
(b) The representations and warranties set forth in each of Any fees required to be paid on or before the Loan Documents Closing Date shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date)have been paid.
(c) No event The Refinancing shall have occurred and be continuing, or shall result from occur substantially contemporaneously with the effectiveness of this Amendment, that constitutes a Default.
(d) All funding of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable Initial Term Loans on the Amendment Effective Date shall have been paid in full.
(e) Certified copies Closing Date. Without limiting the generality of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 9.03, for purposes of determining compliance with the Credit Agreementconditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Viad Corp)
Conditions of Effectiveness. This The effectiveness of this Amendment shall become effective as of the first date (the “Amendment No. 1 Effective Date”) on which, and only if, each of is subject to the following conditions precedent shall have been satisfiedprecedent:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment duly executed by the Borrower and Borrower, the Required Lenders (including each existing Lender or(if any) whose Commitment is increasing pursuant to the terms of this Amendment), as to any of the New Lenders, advice satisfactory to the Issuing Bank, the Swingline Lender and the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective DateAgent.
(b) The representations Administrative Agent shall have received a favorable written opinions (addressed to the Administrative Agent and warranties set forth the Lenders and dated the Amendment No. 1 Effective Date) of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special financing counsel for the Borrower and (ii) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special securities counsel for the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the Borrower, the Loan Documents, this Amendment or the Transactions as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received (i) a certificate signed by a Financial Officer of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective DateBorrower certifying that, before and after giving effect to this Amendment, (A) the Borrower is in compliance (on a pro forma basis assuming the increased Commitments have been fully drawn as though made Revolving Loans) with the covenants contained in Section 6.05 of the Credit Agreement for the fiscal quarter ended October 30, 2015, (B) the representations and warranties of the Borrower set forth in the Credit Agreement (as amended by this Amendment) (other than the representations and warranties contained in Section 3.04(b) and Section 3.06(a)) are true and correct in all material respects (except that any representation and warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) on and as of the date of such date (except for certificate; except, in each case, to the extent any such representation and or warranty that, by its terms, specifically refers to a specific date other than the Amendment Effective Datean earlier date, in which case it shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) as of such specific earlier date).
, and (cC) No event shall have no Default or Event of Default has occurred and be is continuing, and (ii) such other documents and certificates as the Administrative Agent or shall result from its counsel may reasonably request relating to the effectiveness organization, existence and good standing of this Amendmentthe Borrower, that constitutes a Defaultthe authorization of the Transactions and any other legal matters relating to the Borrower, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) All The Administrative Agent shall have received (i) for the account of each Lender participating in the fees increase to the Commitments pursuant hereto (including each New Lender) that delivers its executed signature page to this Amendment by no later than the date and expenses time specified by the Administrative Agent, an upfront fee in an amount equal to the applicable amount previously disclosed to the Lenders and (ii) payment of the Administrative Agent Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including the reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) due in connection with this Amendment and payable on the Amendment Effective Date shall have been paid in fullother Loan Documents.
(e) Certified copies The Administrative Agent shall have made such reallocations of (i) the resolutions each Lender’s Applicable Percentage of the Board of Directors, general partner or managing member, Revolving Credit Exposure under the Credit Agreement as applicable, of (A) are necessary in order that the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, Revolving Credit Exposure with respect to this Amendmentsuch Lender reflects such Lender’s Applicable Percentage of the Revolving Credit Exposure under the Credit Agreement as amended hereby. The Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the Consent sale and assignment of any Eurocurrency Loans and the matters contemplated hereby reallocation described in this clause (e), in each case on the terms and thereby.
(f) A certificate of in the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of manner set forth in Section 9.01 2.16 of the Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (NetApp, Inc.)
Conditions of Effectiveness. This Amendment shall become effective as of the date first date (the “Amendment Effective Date”) on whichabove written when, and only if, each of when the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) payment of the fees set out in that certain Fee Letter dated September 20, 2006 between the Borrower and the Agent, and shall have received counterparts of this Amendment executed by the Borrower Company and each Lender all of the Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each Amendment and shall have additionally received all of the Guarantorsfollowing documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) and (iii) a Note payable in sufficient copies for each Lender, in form and substance satisfactory to the order of Agent (unless otherwise specified) and in sufficient copies for each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.:
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(ea) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower Company approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Amendment and the matters contemplated hereby and therebyhereby.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower Company certifying the names and true signatures of the officers of the Borrower Company authorized to sign this Amendment and the other documents to be delivered hereunder.
(c) A favorable opinion of the Vice President and General Counsel of the Company, with respect to this Amendment and the Credit Agreement as amended hereby, in substantially the form of Exhibit A to this Amendment.
(d) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance satisfactory to the Agent.
(e) A certificate signed by a duly authorized officer of the Company stating that (and the Company hereby represents and warrants that):
(i) The representations and warranties contained in Section 4 of this Amendment and in Section 4.01 of the Credit Agreement, as amended hereby, are correct on and as of the date of such certificate as though made on and as of such date; and
(ii) each Guarantor certifying the names No event has occurred and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described hereincontinuing that constitutes a Default. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Lubrizol Corp)
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, which each of the following conditions precedent shall have has been satisfied:
SECTION 1. The Agent’s receipt of the following, each of which shall be originals, telecopies or in .pdf or other electronic format (afollowed promptly by originals) The Administrative Agent shall have received in each case in accordance with §36 of the Amended Credit Agreement as incorporated herein pursuant to Section 7 hereof:
(i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) duly executed and delivered by each of the GuarantorsBorrower, the Agent, the Closing Date Term Banks and Banks constituting Required Banks; and
(iiiii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment certificate, dated as of the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the First Amendment Effective Date, signed by an Authorized Officer of the Borrower certifying that before and after giving effect to this Amendment, (x) each of the representations and warranties made by or on behalf of the Borrower or BXP contained in the Amended Credit Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with the Credit Agreement or the Amended Credit Agreement shall be true and correct in all material respects as though of the date as of which they were made on and shall also be true and correct in all material respects at and as of such date the First Amendment Effective Date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective representations in §7.5 and §7.14 of the Amended Credit Agreement, which were made only as of the Closing Date), with the same effect as if made at and as of that time (in each case, without duplication of materiality qualifiers set forth in such representations and warranties), except (i) with respect to the representations and warranties set forth in §7.19 and §7.20(b) of the Amended Credit Agreement, in which case they are true and correct in all respects, (ii) where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such specific dateearlier date (without duplication of materiality qualifiers set forth in such representations and warranties, and except with respect to the representation and warranty set forth in §7.20(b) of the Amended Credit Agreement, which shall have been true and correct in all respects).
, (ciii) No event to the extent of changes resulting from transactions contemplated or not prohibited by the Amended Credit Agreement or the other Loan Documents and changes occurring in the ordinary course of business, and (iv) the representations and warranties contained in §7.4 of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of §8.4 of the Amended Credit Agreement; and (y) no Default or Event of Default shall have occurred and be continuing, or shall result from continuing on the effectiveness of this Amendment, that constitutes a DefaultFirst Amendment Effective Date.
(d) All of the fees SECTION 2. No Default has occurred and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable is continuing on the First Amendment Effective Date shall have been paid in fullDate.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Boston Properties LTD Partnership)
Conditions of Effectiveness. This effectiveness of this Amendment shall become effective as of is subject to the first date (the “Amendment Effective Date”) on which, and only if, each satisfaction of the following conditions precedent shall have been satisfied:precedent.
(a) The Administrative Agent shall have received each of the following:
(i) counterparts of this Amendment executed by the Borrower Borrower, the Administrative Agent, Existing Lenders constituting Required Lenders (including all Increasing Lenders), and each New Lender;
(ii) a Note executed by the Borrower in favor of each New Lender or, requesting a Note;
(iii) a certificate of a secretary or assistant secretary of the Borrower (A) certifying as to any the incumbency and genuineness of the Lenders, advice satisfactory to signature of each officer of the Administrative Agent that such Lender has executed Borrower executing this Amendment, (iiB) the consent certifying that attached hereto (the “Consent”) executed by each thereto is a true, correct and complete copy of the GuarantorsOrganization Documents of the Borrower, or certifying that such Organization Documents were delivered on the Closing Date and certifying that since such date there have been no changes thereto, and (iiiC) attaching resolutions adopted by the board of directors (or other governing body) of the Borrower authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment;
(iv) certificates evidencing the existence and good standing of the Borrower, issued by the applicable Governmental Authority of its jurisdiction of organization; (v) a Note payable certificate of a Responsible Officer of the Borrower (A) attaching and certifying as to a true, correct and complete copy of the Permian Acquisition Agreement or certifying as to a copy that has been filed publicly or previously delivered, (B) demonstrating compliance on a pro forma basis with the financial covenants contained in Section 7.11 of the Existing Loan Agreement, after giving effect to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment Transactions (hereinafter defined), as of the Amendment Effective Date.
end of the most recent fiscal quarter, (C) certifying that, after giving effect to the Transactions, the Borrower and its Subsidiaries, on a consolidated basis, are solvent on such date, and (D) certifying as to the matters set forth in clauses (b) The - (h) and as to the representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, of (A) the Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and the matters contemplated hereby and thereby.
(f) A certificate of the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.5 below;
Appears in 1 contract
Conditions of Effectiveness. This Section 2 of this Amendment shall become effective as of the date first date set forth above (the “"Amendment Effective Date”") on which, and only if, when each of the following conditions precedent shall have been satisfiedfulfilled:
(ai) The the Agents, the Fronting Bank, the Required Lenders and the Borrowers shall each have executed and delivered to the Administrative Agent a counterpart of this Amendment;
(ii) the following statements shall be true and correct and the Administrative Agent shall have received a certificate of a duly authorized officer of TXU, dated the Amendment Date and in sufficient copies for each Lender, stating that:
(i) counterparts of this Amendment executed by the Borrower and each Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, (iiA) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.
(b) The representations and warranties of each Borrower set forth in each of the Loan Documents shall be Section 4 hereof are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, Date as though made on and as of such date date; and
(except for any such representation B) no event has occurred and warranty thatis continuing that constitutes a Default or an Event of Default;
(iii) the Administrative Agent shall have received the following, by its terms, refers to a specific date other than each dated the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred form and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of substance satisfactory to the Administrative Agent (including the reasonable fees and expenses of counsel in sufficient copies for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.each Lender:
(eA) Certified certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) each of the Borrowers approving the execution and delivery by such Borrower approving of this Amendment and the matters contemplated hereby performance by such Borrower of its obligations under the Credit Agreement as amended hereby, and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and (ii) of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the execution and delivery by such Borrower of this Amendment, the Consent Amendment and the matters contemplated hereby and thereby.performance by such Borrower of its obligations under the Credit Agreement as amended hereby;
(fB) A a certificate of the Secretary or an Assistant Secretary of each of the Borrowers certifying:
(i1) the Borrower certifying the names and names, true signatures and incumbency of the officers of the such Borrower authorized to sign this Amendment Amendment; and
(2) that neither the certificate of incorporation (or comparable charter document) nor the bylaws of such Borrower have been amended, supplemented or otherwise modified since February 25, 2000 or, if either such document has been amended, supplemented or modified since such date, that attached thereto is a true, correct and (ii) each Guarantor certifying the names and true signatures complete copy of such document as of the officers Amendment Date;
(C) a certificate of a Responsible Officer of each Borrower certifying that all actions, consents, authorizations or approvals of, registrations or filings with, or other actions by, any Governmental Authority required in connection with the execution and delivery by such Guarantor authorized to sign the Consent. The effectiveness Borrower of this Amendment is conditioned upon and the accuracy performance by such Borrower of the factual matters described herein. This Amendment is subject to the provisions of Section 9.01 of its obligations under the Credit AgreementAgreement as amended hereby have been obtained and are in full force and effect and that a true, correct and complete copy of each such consent, authorization, approval and filing is attached thereto;
(D) favorable opinions of counsel for the Borrowers as to such matters as the Administrative Agent may reasonably request; and
(E) such other approvals, opinions and documents as any Lender, through the Administrative Agent, may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Txu Electric Co)
Conditions of Effectiveness. This Amendment Ninth Amendatory Agreement shall be operative as of the date hereof but shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (ix) full and final payment of a $25,000 fee; (y) counterparts of this Amendment Ninth Amendatory Agreement executed by the Borrower and each Lender the Lenders or, as to any of the said Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, Ninth Amendatory Agreement and (iiz) the consent attached hereto (the “Consent”) executed by each all of the Guarantorsfollowing documents, each document (unless otherwise indicated) being dated the effective date, in form and substance satisfactory to the Agent:
(a) a certificate of the Secretary or an Assistant Secretary of the Borrower and the Guarantor certifying the names and true signatures of their respective officers authorized to sign this Ninth Amendatory Agreement, and (iii) a Note payable the other documents to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.be delivered hereunder;
(b) The a certificate signed by a duly authorized officer of the Borrower stating that:
(i) the representations and warranties of the Borrower as set forth in each Article IV of the Credit Agreement and in any documents delivered therewith, including the Loan Documents shall be Documents, are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, date of such certificate as though made on and as of such date (except for any insofar as such representation representations and warranty that, by its terms, refers warranties relate expressly to an earlier date or are based on the accuracy of schedules prepared as of a specific prior date),
(ii) the representations and warranties contained in Section 3 hereof are correct on and as of the date other than the Amendment Effective Date, in which case of such certificate as though made on and as of such specific date)., and
(iii) after giving effect to this Ninth Amendatory Agreement, no Default or Event of Default has occurred and is continuing;
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower and of the Guarantor approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby Ninth Amendatory Agreement and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Ninth Amendatory Agreement and the matters contemplated hereby and thereby.hereby; and
(d) a favorable opinion of Kaufman & Canoles, counsel f) A certificate of ▇▇ ▇▇▇ Bor▇▇▇▇▇ ▇nd the Secretary or an Assistant Secretary of (i) the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject Guarantor, in a form reasonably acceptable to the provisions of Section 9.01 of the Credit AgreementAgent and Lenders.
Appears in 1 contract
Conditions of Effectiveness. This Amendment Ninth Amendatory Agreement shall be operative as of the date hereof but shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (ix) full and final payment of a $25,000 fee; (y) counterparts of this Amendment Ninth Amendatory Agreement executed by the Borrower and each Lender the Lenders or, as to any of the said Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, Ninth Amendatory Agreement and (iiz) the consent attached hereto (the “Consent”) executed by each all of the Guarantorsfollowing documents, each document (unless otherwise indicated) being dated the effective date, in form and substance satisfactory to the Agent:
(a) a certificate of the Secretary or an Assistant Secretary of the Borrower and the Guarantor certifying the names and true signatures of their respective officers authorized to sign this Ninth Amendatory Agreement, and (iii) a Note payable the other documents to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.be delivered hereunder;
(b) The a certificate signed by a duly authorized officer of the Borrower stating that:
(i) the representations and warranties of the Borrower as set forth in each Article IV of the Credit Agreement and in any documents delivered therewith, including the Loan Documents shall be Documents, are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, date of such certificate as though made on and as of such date (except for any insofar as such representation representations and warranty that, by its terms, refers warranties relate expressly to an earlier date or are based on the accuracy of schedules prepared as of a specific prior date),
(ii) the representations and warranties contained in Section 3 hereof are correct on and as of the date other than the Amendment Effective Date, in which case of such certificate as though made on and as of such specific date)., and
(iii) after giving effect to this Ninth Amendatory Agreement, no Default or Event of Default has occurred and is continuing;
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(e) Certified certified copies of (i) the resolutions of the Board of Directors, general partner or managing member, as applicable, Directors of (A) the Borrower and of the Guarantor approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby Ninth Amendatory Agreement and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Ninth Amendatory Agreement and the matters contemplated hereby and thereby.hereby; and
(fd) A certificate a favorable opinion of the Secretary or an Assistant Secretary of (i) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Borrower certifying and the names and true signatures of the officers of the Borrower authorized to sign this Amendment and (ii) each Guarantor certifying the names and true signatures of the officers of such Guarantor authorized to sign the Consent. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject Guarantor, in a form reasonably acceptable to the provisions of Section 9.01 of the Credit AgreementAgent and Lenders.
Appears in 1 contract
Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on whichwhen, and only ifwhen, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received (i) counterparts of this Amendment executed by the Borrower Borrowers and each Lender or, as to any all of the LendersBanks, advice except that Section 1 hereof shall become effective when, and only when, the Agent shall have additionally received all of the following documents, each document (unless otherwise indicated) being dated the date of receipt thereof by the Agent (which date shall be the same for all such documents), in form and substance satisfactory to the Administrative Agent that such Lender has executed this Amendment, (ii) the consent attached hereto (the “Consent”) executed by each of the Guarantors, and (iii) a Note payable to the order of each Lender requesting the same in a principal amount equal to such Lender’s respective Revolving Credit Commitment as of the Amendment Effective Date.Banks:
(b) The representations and warranties set forth in each of the Loan Documents shall be correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date).
(c) No event shall have occurred and be continuing, or shall result from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the fees and expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.
(ea) Certified copies of (i) the resolutions of the Board of Directors, general partner Directors or managing member, as applicable, Executive Committee of (A) the each Borrower approving this Amendment and the matters contemplated hereby and thereby and (B) each Guarantor approving the Consent and the matters contemplated hereby and thereby and hereby, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent Amendment and the matters contemplated hereby hereby, (iii) all waivers and therebyamendments with respect to the Junior Debt concerning the matters covered by this Amendment, which shall include an amendment to the Junior Debt documents extending the maturity date thereof to April 15, 1998, and (iv) an executed copy of Amendment No. 4 to Receivables Purchase and Servicing Agreement extending the maturity date of the Purchase Agreement to March 31, 1998 and in form and substance satisfactory to the Banks.
(fb) A certificate of the Secretary or an Assistant Secretary of (i) the each Borrower certifying the names and true signatures of the officers of the such Borrower authorized to sign this Amendment and the other documents to be delivered hereunder.
(c) A favorable opinion of Brob▇▇▇, ▇▇le▇▇▇ & ▇arr▇▇▇▇ ▇▇▇, counsel for the Borrowers, to the effect that this Amendment and each and every other document delivered by any of the Borrowers have been duly authorized, executed and delivered by such Borrowers, and constitute the legal, valid and binding obligations of such Borrowers, enforceable against such Borrowers in accordance with their respective terms, and to such other matters as the Agent may reasonably require.
(d) A certificate signed by a duly authorized officer of each Borrower stating that:
(i) The representations and warranties contained in Section 3 hereof are correct on and as of the date of such certificate as though made on and as of such date, and
(ii) each Guarantor certifying After giving effect to the names and true signatures terms of the officers Amendment, no event has occurred and is continuing which constitutes a Default or an Event of such Guarantor authorized to sign Default.
(e) Results of a recent field examination by the Consent. The effectiveness of this Amendment is conditioned upon the accuracy Banks of the factual matters described herein. This Amendment is subject Borrowers' assets, liabilities, books and records that are satisfactory to the provisions Banks in their sole discretion.
(f) A 1998 Business Plan (forecasted on a monthly basis).
(g) Payment of Section 9.01 a $40,000 extension fee to the Agent for the ratable benefit of the Credit AgreementBanks, which shall be fully earned by the Banks on the date so paid.
Appears in 1 contract
Sources: Credit Agreement (Us Homecare Corp)