Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each of the following conditions precedent has been satisfied: (a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders; (b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note; (c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent; (d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel; (e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect; (f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect; (g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing; (h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts; (i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and (j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (Martin Midstream Partners Lp), Credit Agreement
Conditions of Effectiveness. This Fifth Amendment shall not be deemed effective until as of the first date each (such date being referred to herein as the “Third Amendment Effective Date”) on which all of the following conditions precedent has have been satisfiedsatisfied or waived in writing:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) ’s receipt of the Credit Agreement following, in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and number as reasonably requested by the Administrative Agent,, each of which shall be original, or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Third Amendment Effective Date) and each case in form and substance acceptable satisfactory to the Administrative Agent and its counselthe Lenders constituting the Required Lenders:
(i) executed counterparts of this Amendment from each of the Loan Parties, the Administrative Agent and the Lenders constituting the Required Lenders;
(eii) all governmental such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and third party consents capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the transactions contemplated hereby, the obtaining of other Loan Documents to which such Loan Party is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effectparty;
(fiii) such documents and certifications as the Administrative Agent has received may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(iv) a favorable customary opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender;
(v) a favorable customary opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that (i) 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v1) no action, suit, investigation or proceeding is pending or, to the knowledge of such officerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority by that (A) challenges the validity or against enforceability of this Amendment, the BorrowerExisting Credit Agreement, the Amended Credit Agreement, any Guarantor, the MLP’s general partner, other Loan Document or any of their respective properties that the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect and (2) since December 31, 2023, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(gvii) a certificate, substantially in the Borrower has paid (i) fees form of Exhibit E to the ArrangersAmended Credit Agreement or otherwise satisfactory to the Administrative Agent, signed by a Responsible Officer of the Parent and evidencing that, giving pro forma effect as of December 31, 2023 to the transactions to occur on or about the Third Amendment Effective Date, as of the date of the Third Amendment Effective Date, the Loan Parties are in pro forma compliance with the financial covenants contained in Section 7.11 of the Amended Credit Agreement, setting forth a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter ending December 31, 2023, and including a schedule of Unencumbered Eligible Properties, all in form and detail reasonably satisfactory to the Administrative Agent; and
(viii) an executed joinder agreement to the Guaranty from each Direct Owner and Indirect Owner of each Unencumbered Property listed on Schedule 1 included in Annex II that is not already party to the Guaranty Agreement, including, for the avoidance of doubt, Williamsburg ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇. and ESRT ▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.▇., together with the items referenced in Sections 4.01(a)(iii) and (iv) of the Amended Credit Agreement with respect to each such Direct Owner and Indirect Owner.
(b) At least five (5) Business Days prior to the Third Amendment Effective Date, the Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, the Beneficial Ownership Regulation (on behalf of itself and the Lendersincluding a Beneficial Ownership Certification) and other fees customary requirements, in each case, to the extent such information is requested in writing at least ten (10) Business Days prior to the Third Amendment Effective Date.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and expenses due disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to the Third Amendment Effective Date (which invoice may be in summary form), plus such additional amounts of such fees, charges and payable pursuant disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to any fee letters applicable to this Fifth Amendment be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers). Without limiting the generality of the provisions of Article IX the last paragraph of Section 9.03 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, 3 each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 2 contracts
Sources: Credit Agreement (Empire State Realty Trust, Inc.), Credit Agreement (Empire State Realty OP, L.P.)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of this Agreement and the date obligation of each Term Lender to make its Term Loan hereunder is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, the Borrower’s Instruction Certificate and the Borrower Remittance Instructions, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent has received a counterpart and each of the Lenders:
(i) executed counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the BorrowerAgreement, the MLP, the other Loan Parties, sufficient in number for distribution to the Administrative Agent, each Lender and the LendersBorrower;
(bii) a Revolving Credit Note executed by the Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iii) a duly completed Borrower’s Instruction Certificate executed by a Responsible Officer of the Borrower, together with such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent has received an amended may require evidencing the identity, authority and restated promissory note payable capacity of each Responsible Officer thereof authorized to each Lender that has previously requested act as a promissory note, as applicable, or that Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party 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 noteparty;
(civ) such documents and certifications as the Administrative Agent has received (i) a certificate of may reasonably require to evidence that each Loan PartyParty is duly organized or formed, dated as of the Fifth Amendment Effective Date and executed by an appropriate officerthat each Loan Party is validly existing, which shall in good standing and qualified to engage in business in (A) certify the resolutions or other action authorizing the execution, delivery and performance its jurisdiction of this Fifth Amendment organization and (B) certify that certain documents previously delivered each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the Administrative Agent are in full force extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions addressed and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securitiesthe Issuing Banks and the Lenders, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect from counsel reasonably acceptable to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Agent, counsel as to the matters concerning the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and Loan Documents as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counselmay reasonably request;
(evi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all governmental consents, licenses and third party consents approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to the transactions contemplated hereby, the obtaining of which it is a condition to the MLP’sparty, the Borrower’s or their affiliates’ funding obligations under the Credit Agreementand such consents, have been obtained licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(fvii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (ib) 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)have been satisfied, (iiB) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, that there has been no event or circumstance since December 31, 2016 that has had or could be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, (ivC) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) that no action, suit, investigation or proceeding is pending or, to the knowledge of such officerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority by that (1) relates to this Agreement or against the Borrower, any Guarantor, the MLP’s general partnerother Loan Document, or any of their respective properties that the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse EffectEffect and (D) a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter of the REIT ended September 30, 2017;
(gviii) a Solvency Certificate from the REIT certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), each Loan Party is, individually and together with its Subsidiaries on a consolidated basis, Solvent;
(ix) a duly completed compliance certificate, giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date);
(x) duly completed Borrower Remittance Instructions signed by a Responsible Officer of the Borrower;
(xi) the Borrower has paid financial statements referenced in Section 5.05(a) and (ib);
(xii) fees evidence that each of the Existing BANA Credit Agreement, the Existing PNC Credit Agreement and the Existing WFB Credit Agreement and all documents entered into in connection with each such agreement, shall have been terminated in full (except to the Arrangersextent that provisions of any such document by its express terms survives termination thereof) and all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith (other than any contingent obligation not yet due and payable) shall have been paid in full and all commitments thereunder shall have been terminated, or concurrently with the Closing Date is being, terminated and paid in full; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender, the Required Lenders or the Required Term Lenders reasonably may require.
(b) Any fees required hereunder or under the Fee Letters to be paid on or before the Closing Date shall have been paid.
(c) Completion of all due diligence with respect to the REIT, the Borrower, and their respective Subsidiaries and properties in scope and determination satisfactory to the Administrative Agent, the Bookrunner, the Arrangers and the Lenders in their sole discretion.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) prior to or on behalf the Closing Date, plus such additional amounts of itself such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Arrangers Administrative Agent).
(e) At least ten Business Days prior to the Closing Date, the Administrative Agent and (ii) each Lender shall have received documentation and other information with respect to each of the Loan Parties that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Arrangers’ reasonable legal fees USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and expenses to regulations implemented by the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders US Treasury’s Financial Crimes Enforcement Network under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersBank Secrecy Act. Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Acadia Realty Trust), Credit Agreement (Acadia Realty Trust)
Conditions of Effectiveness. This Fifth Amendment The amendments set forth in Section 2 of this Amendment, the joinder of the New Borrowers pursuant to Section 3 of this Amendment, and the limited waiver set forth in Section 4 of this Amendment, as well as any other terms and conditions set forth herein, shall not be effective until as of the date each Effective Date, subject to the satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) the Administrative Agent has shall have received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Partyfollowing, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Amendment executed by the Borrowers, the Administrative Agent, and the Lenders,
(ii) amended and restated Notes, executed by the Borrowers,
(iii) a joinder to the Security Agreement, executed by the New Borrowers, together with such stock powers or other agreements or instruments of transfer as the Administrative Agent may request to perfect its Lien on any Collateral to the extent required under the Security Agreement,
(iv) a certificate of the secretary, assistant secretary or other Responsible Officer of each New Borrower certifying as to the incumbency and genuineness of the signature of each officer of such New Borrower executing the Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles of incorporation or comparable organizational documents of such New Borrower and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the bylaws or comparable organizational documents of such New Borrower as in effect on the date of such certifications, (C) resolutions duly adopted by the board of directors or comparable governing body of such New Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, and (D) certificates as of a recent date of the good standing or active status, as applicable, of such New Borrower under the laws of its jurisdiction of organization,
(v) copies of insurance certificates describing all insurance policies required by Section 7.6 of the Credit Agreement with respect to the New Borrowers, together with loss payable and lender endorsements in favor of the Administrative Agent with respect to all insurance policies covering Collateral;
(vi) the results of UCC Lien searches showing all financing statements and other documents or instruments on file against each New Borrower in the appropriate filing offices, such searches to be as of a date acceptable to the Administrative Agent and reflecting no Liens against any of the Property of the New Borrower other than Permitted Liens,
(vii) an opinion of T▇▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P.S▇▇▇▇▇▇ LLP, counsel to the Loan Parties New Borrowers,
(viii) a copy of each Eligible Asset Lease Agreement for each Eligible Asset of the New Borrowers,
(ix) true and correct copies of all Material Contractual Obligations described on Schedule 3.7 hereto, and
(iix) local counsel in each jurisdiction applicable a duly completed Borrowing Base Report, calculating the Borrowing Base on the Effective Date after giving effect to the joinder of the New Borrowers and the other transactions contemplated by this Fifth Amendment Amendment;
(b) the Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations, and (y) if any New Borrower qualifies as reasonably requested by a “legal entity customer” under the Administrative AgentBeneficial Ownership Regulation, a Beneficial Ownership Certification in each case in form and substance acceptable relation to such New Borrower;
(c) the Administrative Agent shall have received payment or evidence of payment by the Borrowers of the costs and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining expenses referred in Section 12.3 of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effectto the extent invoiced on or prior to the date hereof;
(fd) no Default (other than the Administrative Agent has received a certificate signed by a Responsible Officer Specified Default) shall have occurred and be continuing, and since the effective date of the Borrower certifying that most recent financial statements delivered pursuant to Section 7.1(a) of the Credit Agreement, no event or circumstance exists that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and
(ie) the representations and warranties contained set forth 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 Section 7 hereof shall be true and correct in all material respects as of such earlier date), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindinghereof.
Appears in 2 contracts
Sources: Credit Agreement (StratCap Digital Infrastructure REIT, Inc.), Credit Agreement (StratCap Digital Infrastructure REIT, Inc.)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received following, each properly executed (if applicable) by a counterpart Responsible Officer of this Fifth Amendment the signing Loan Party (which which, subject to Section 10.10(b), may be include any Electronic Signatures transmitted by telecopy telecopy, emailed pdf. or any other electronic transmission) means that reproduces an image of an actual executed by signature page), each dated the BorrowerClosing Date (or, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount case of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate certificates of each Loan Partygovernmental officials, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Closing Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement from each party hereto;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing;
(v) a customary opinion of ▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& ▇▇▇▇▇▇▇ Fargo SecuritiesLLP, LLC counsel to the Loan Parties, and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, special Maryland counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentGuarantor, in each case in form and substance acceptable addressed to the Administrative Agent and its counseleach Lender;
(evi) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (ithe conditions specified in Sections 4.02(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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (vb) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effectbeen satisfied;
(gvii) the Audited Financial Statements of the Guarantor referred to in Section 5.05(a); and
(viii) a solvency certificate from the chief financial officer, treasurer or other senior financial officer of the Borrower has substantially in the form attached hereto as Exhibit F.
(b) Any fees required to be paid (i) fees on or before the Closing Date pursuant to the ArrangersFee Letters shall have been paid.
(c) The Borrower shall have paid all reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (on behalf directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least five (5) Business Days prior to the Closing Date, plus such additional amounts of itself such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Arrangers Administrative Agent).
(d) The Closing Date Refinancing shall be consummated substantially simultaneously with the Closing Date.
(i) The Administrative Agent shall have received, at least five days prior to the Closing Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Closing Date and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to closing;
(h) the Closing Date, any Lender that has requested, in a written notice to the Borrower has 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 (i) delivered an amendment provided that, upon the execution and delivery by such Lender of its signature page to each applicable Mortgage to extend this Agreement, the maturity date described therein and condition set forth in this clause (ii) paid funds sufficient shall be deemed to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangerssatisfied). Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Istar Inc.), Credit Agreement (Safehold Inc.)
Conditions of Effectiveness. This Fifth The effectiveness of this Amendment shall not be effective until (including the date each amendments contained in Section 1 and agreements contained in Section 2) are subject to the satisfaction (or waiver) of the following conditions precedent has been satisfied:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) This Amendment shall have been duly executed by the Borrowers, Holdings, the Subsidiary Guarantors and the Administrative Agent has received a counterpart of this Fifth Amendment (which may be include a copy transmitted by telecopy facsimile or other electronic transmission) executed by the Borrowermethod), the MLP, the other Loan Parties, and delivered to the Administrative Agent, and the Lenders;Lenders under the Credit Agreement consisting of Lenders holding more than 50% of the aggregate outstanding principal amount of the Initial Term Loans immediately prior to the First Amendment Effective Date.
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note[Reserved];
(c) the The Administrative Agent has shall have received a certificate signed by a Responsible Officer of the Top Borrower as to the matters set forth in paragraphs (f) and (g) of this Section 3;
(d) The Administrative Agent shall have received (i) a certificate of each Loan Party, dated as of the Fifth First Amendment Effective Date and executed by an appropriate officera secretary, assistant secretary or other Responsible Officer thereof, which shall (A) certify the resolutions or other action authorizing the execution, delivery that either (x) (i) attached thereto is a true and performance complete copy of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation incorporation, formation or organization or equivalent constitutional documents of each such Loan Party certified by the relevant authority of the its jurisdiction of organization and that such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended, repealed, modified or restated (except as attached thereto) since the date reflected thereon or (ii) the certificate or articles of incorporation, formation or organization of such Loan Party delivered on the Closing Date to the Administrative Agent have not been amended, repealed, modified or restated and are in full force and effect, (y) (i) attached thereto is a true and correct copy of its bylaws the by-laws or operating, management management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Closing Date and such by-laws or operating, management, partnership agreementor similar agreement are in full force and effect or (ii) the 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 thereto is a true and complete copy of the resolutions 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 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 incumbency certificates(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign this Amendment or any of such other Loan Documents to which such Loan Party is a party on the Closing Date and (ii) a good standing (or equivalent) certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate date for such Loan Party from the chief financial officer relevant authority of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions its jurisdiction of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;organization.
(e) all governmental and third party consents to The Administrative Agent shall have received a certificate as of a recent date of the transactions contemplated hereby, good standing of each of the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations Loan Parties under the Credit Agreementlaws of its jurisdiction of organization, have been obtained and shall be in full force and effectfrom the Secretary of State (or comparable Governmental Authority) of such jurisdiction;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no No Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to both before and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, immediately after giving effect to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effecttransactions contemplated hereby;
(g) The representations and warranties of the Borrowers and each of the Guarantors set forth in Section 4 of this Amendment are true and correct;
(h) All fees and expenses required to be paid hereunder or pursuant to any fee letter among the Top Borrower has and any Repricing Arranger (as defined below) and that certain engagement letter dated as of May 14, 2015 (the “Engagement Letter”), by and among the Top Borrower and the Repricing Arrangers shall have been paid (i) fees to in full 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 (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee their respective Affiliates in connection with the filing execution and delivery of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;this Amendment.
(i) the Administrative Agent The Replacement Lender shall have received (on behalf executed and delivered the Master Assignment contemplated by Section 2 above and all conditions to the consummation of the Exiting Lendersassignments in accordance with Section 2 above shall have been satisfied and such assignments shall have been consummated.
(j) funds necessary The Borrowers shall have, substantially concurrently with the effectiveness of this Amendment, paid to pay each Non-Consenting Term Lender all principal, accrued interest, fees and other charges owed amounts payable to such Non-Consenting Term Lender under any Loan Document with respect to the Exiting Lenders Term Loans assigned by such Non-Consenting Term Lender under the Loan Documents; and
(jSection 2(c) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender above (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed principal and all other amounts paid to have consented tosuch Non-Consenting Term Lender under Section 2 above), approved or accepted or be satisfied withif any, each document or other matter required then due and owing to such Non-Consenting Term Lender under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, Agreement and the other Loan Documents (immediately prior to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding).
Appears in 2 contracts
Sources: Credit Agreement (Cotiviti Holdings, Inc.), Credit Agreement (Cotiviti Holdings, Inc.)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until the date each of the following conditions precedent has been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrowersuch date, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b“Amendment No. 1 Effective Date”) the Administrative when Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has shall have received (i) a copy of this Amendment executed by Agent, Required Lenders, each Loan Party and Personal Guarantor (defined below) with one original executed copy of this Amendment to be promptly delivered by Loan Parties to Agent; (ii) an executed copy of the Amended and Restated Revolving Credit Note, dated of even date herewith, in the principal amount of $10,000,000 issued by Borrower to the order of Flushing Bank, with one original executed copy to be promptly delivered by Borrower to Agent; (iii) an executed copy of the Second Amended and Restated Fee Letter, dated of even date herewith, with one original executed copy to be promptly delivered by Borrower to Agent; and (iv) a certificate of the Secretary (or Assistant Secretary) of each Loan Party, dated as of on or around the Fifth Amendment No. 1 Effective Date and executed by an appropriate officerDate, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to Agent, certifying as to (a) the Administrative Agent incumbency and its counsel;
signature of the officers (eor other representatives) all governmental of each Loan Party executing this Amendment, (b) the authorizations by the board of directors (or other governing body) of such Loan Party to such officers or other representatives to enter into and third party consents carry out such transactions as are contemplated pursuant to this Amendment; and including therewith copies of the Organic Documents of such Loan Party as in effect on the Amendment No. 1 Effective Date and good standing certificates for each Loan Party dated not more than thirty (30) days prior to the transactions contemplated herebyAmendment No. 1 Effective Date, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required issued by the Administrative Agent secretary of state or other appropriate official of each Loan Party’s jurisdiction of organization and each jurisdiction where the conduct of each Loan Party’s business activities or the Arrangers. Without limiting the generality ownership of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingits properties necessitates qualification.
Appears in 2 contracts
Sources: Credit and Security Agreement, Credit and Security Agreement (Manhattan Bridge Capital, Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of the date each amendment and restatement of the Replaced Credit Agreement by this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent has received a counterpart and each of the Lenders:
(i) fully executed counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by Agreement and the BorrowerGuaranty, the MLP, the other Loan Parties, sufficient in number for distribution to the Administrative Agent, each Lender and the LendersBorrower;
(bii) a Disbursement Instruction Agreement effective as of the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent has received an amended may reasonably require evidencing the identity, authority and restated promissory note payable capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Lender Loan Party is duly organized or formed, and that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) each of the Credit Agreement Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the amount conduct of its business requires such Lender’s Commitment as indicated on Schedule 2.01 qualification, except to the Credit Agreement extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(as amended hereby); provided that each such Lender receiving v) a replacement promissory note hereby agrees to return its existing original promissory note favorable opinion of counsel to the Borrower promptly after receiving such replacement promissory note(on behalf of each of the Loan Parties), addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(c) the Administrative Agent has received (ivi) a certificate of a Responsible Officer of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall Party either (A) certify the resolutions or other action authorizing attaching copies of all applicable consents, licenses and approvals required in connection with the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a true and correct copy of its bylaws or operating, management or partnership agreementparty, and incumbency certificatessuch consents, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, licenses and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(fvii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower Parent certifying (A) that each Consolidated Party is in compliance in all material respects with all existing contractual financial obligations, (iB) all governmental, shareholder and third party consents and approvals necessary for the Loan Parties to enter into the Loan Documents and fully perform thereunder, if any, have been obtained, (C) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (1) each of the Loan Parties is solvent, (2) no Default or Event of Default exists, (3) all representations and warranties contained herein and in Article V of the Credit Agreement other Loan Documents are true and correct in all material respects on and as of such date (unless or, to the extent qualified by materiality or Material Adverse Effect, in all respects) except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be were true and correct in all material respects as of such earlier date, and (y) for purposes of the representations and warranties set forth in Section 5.13, to the extent of changes resulting from transactions and other events contemplated or not prohibited by this Agreement or the other Loan Documents and changes occurring in the ordinary course of Borrower’s business, and (4) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.11 (and including detailed calculations of each such financial covenant); (D) that, (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of to such date, (iii) since December 31, 2015Responsible Officer’s knowledge, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect; and (E) the current Debt Ratings;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(ix) such other assurances, certificates, documents or consents as the Administrative Agent or the Required Lenders reasonably may require.
(ivb) there is no litigationThere shall not have occurred a material adverse change since December 31, investigation 2017, in the operations, business, properties, liabilities (actual or proceeding known to and affecting contingent), or financial condition of the Borrower or and the other Consolidated Parties taken as a whole, as reasonably determined by the Administrative Agent.
(c) There shall not exist any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation investigation, or proceeding is pending oror threatened, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties governmental authority that could reasonably be expected to have a Material Adverse Effect;, as reasonably determined by the Administrative Agent.
(gd) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by the Administrative Agent, the Borrower has shall have paid (i) fees all fees, charges and disbursements of counsel to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant directly to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) such counsel if requested by the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses ) to the extent invoiced prior to closing;or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(hf) the The Borrower has (i) delivered an amendment to and each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to other Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Arrangers for payment of such amounts;Patriot Act.
(ig) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent shall have received Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (on behalf of the Exiting Lenders5) funds necessary to pay all principal, interest, fees and other charges owed Business Days prior to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersClosing Date. Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Term Loan Agreement (Tanger Properties LTD Partnership /Nc/), Term Loan Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received following, each properly executed (if applicable) by a counterpart Responsible Officer of this Fifth Amendment the signing Loan Party (which which, subject to Section 10.10(b), may be include any Electronic Signatures transmitted by telecopy telecopy, emailed pdf. or any other electronic transmission) means that reproduces an image of an actual executed by signature page), each dated the BorrowerClosing Date (or, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount case of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate certificates of each Loan Partygovernmental officials, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Closing Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement from each party hereto;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing;
(v) a customary opinion of ▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& ▇▇▇▇▇▇▇ Fargo SecuritiesLLP, LLC counsel to the Loan Parties, and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, special Maryland counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentGuarantor, in each case in form and substance acceptable addressed to the Administrative Agent and its counseleach Lender;
(evi) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (ithe conditions specified in Sections 4.02(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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (vb) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effectbeen satisfied;
(gvii) the Audited Financial Statements of the Guarantor referred to in Section 5.05(a); and
(viii) a solvency certificate from the chief financial officer, treasurer or other senior financial officer of the Borrower has substantially in the form attached hereto as Exhibit F.
(b) Any fees required to be paid (i) fees on or before the Closing Date pursuant to the ArrangersFee Letters shall have been paid.
(c) The Borrower shall have paid all reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (on behalf directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least five (5) Business Days prior to the Closing Date, plus such additional amounts of itself such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Arrangers Administrative Agent).
(d) [reserved].
(i) The Administrative Agent shall have received, at least five days prior to the Closing Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Closing Date and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to closing;
(h) the Closing Date, any Lender that has requested, in a written notice to the Borrower has 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 (i) delivered an amendment provided that, upon the execution and delivery by such Lender of its signature page to each applicable Mortgage to extend this Agreement, the maturity date described therein and condition set forth in this clause (ii) paid funds sufficient shall be deemed to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangerssatisfied). Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Istar Inc.), Credit Agreement (Safehold Inc.)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the first date (such date being referred to as the “Effective Date”) when each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has received a counterpart (or its counsel) shall have received:
(a) counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed signed by the BorrowerBorrowers, the MLP, the other Loan PartiesGuarantors, 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 Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory notelegal opinion of Smith, as applicableAnderson, 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 Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel 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;
Loan Parties, (c) the Administrative Agent has received legal opinion of ▇▇▇▇ & Staehelin, Swiss counsel for the Lead Arrangers, (id) a certificate 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 Loan Partycase, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(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 has received opinions as to satisfaction of the conditions set forth in clauses (if) 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇ LLP, counsel in accordance with Section 10.04 of the Existing Credit Agreement.
(c) At least three (3) Business Days prior to the Loan Parties Effective Date, the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including a certification regarding beneficial ownership as required by the 31 C.F.R. § 1010.230), including the USA PATRIOT Act, that has been requested in writing at least ten (10) Business Days prior to the Effective Date.
(d) The Administrative Agent shall have received, for the benefit of the Applicable Lenders, all accrued and unpaid interest on the Existing Term A Loans and the Existing Revolving Loans, to but excluding the Effective Date (whether or not then due) and all accrued and unpaid fees under the Existing Facilities (whether or not then due).
(e) The Administrative Agent shall have received (i) for the account of each Refinancing Lender a fee payable in the currency in which such Loans or Commitments are denominated equal to 0.15% of the aggregate principal amount of Commitments of such Refinancing Lender not in excess of the Commitments of such Refinancing Lender under the Existing Term Loans and Existing Revolving Credit Commitments under the Fourth Amended and Restated Credit Agreement immediately prior to the Fifth Restatement Effective Date; provided that with respect to the aggregate principal amount, if any, of Commitments of any Refinancing Lender in in excess of the Commitments of such Refinancing Lender under any of the Existing Facilities under the Fourth Amended and Restated Credit Agreement immediately prior to the Fifth Restatement Effective Date (any such excess amount, the “New Commitment Amount”), such fee shall be an amount equal to 0.25% of the New Commitment Amount of such Refinancing Lender and (ii) local counsel in for the account of each jurisdiction applicable Term Lender that has returned an executed counterpart to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
at or prior to 5:00 p.m. (eNew York City time) all governmental and third party consents on August 17, 2021, a consent fee payable in the currency in which such Loans are denominated equal to 0.025% of the transactions contemplated hereby, aggregate principal amount of Term B Loans of such Term Lender as of the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;Fifth Restatement Effective Date.
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the The representations and warranties contained of each Loan Party set forth in Article V of the Existing Credit Agreement are and in each other Credit Document shall be true and correct in all material respects on and as of such date (unless the Effective Date, except to the extent such representations and warranties specifically refer expressly relate to an earlier date, in which case such representations and warranties 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, (ii) including the making of the Refinancing Revolving Credit Loans and the Refinancing Term Loans and the application of the proceeds therefrom, no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;shall exist.
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the The Administrative Agent shall have received (on behalf a Solvency Certificate from a Responsible Officer of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to Parent Borrower in substantially the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents form attached hereto as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.Annex C.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until simultaneously with the date each consummation of the Acquisition under and as defined in the Share Exchange Agreement dated as of January 5, 1997 among Republic Industries, Inc., National, Santa Anna ▇▇▇dings, Inc. and Emerald Investors, L.L.C. when, and only when, the Trustee, the NFC Collateral Agent and the Liquidity Agent shall have received counterparts of this Amendment executed by NFLP, National, the Trustee, the NFC Collateral Agent, the Liquidity Agent, the Series 1996-2 Noteholder, and the Series 1996-2 Enhancement Providers, and counterparts of the Consent hereto executed by the Dealers and the Liquidity Lenders, and Sections 2 and 3 hereof shall become effective when, and only when, (I) such Acquisition shall have been consummated (it being understood and agreed by the parties hereto that Sections 2 and 3 hereof shall become effective simultaneously with such consummation) and (II) the Trustee, the NFC Collateral Agent and the Liquidity Agent shall have received all of the following conditions precedent has been satisfied:
documents, each document (aunless otherwise indicated) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy being dated, or other electronic transmission) executed by the Borrowerdated as of, the MLP, the other Loan Parties, the Administrative Agent, date hereof and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, togetherTrustee, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative NFC Collateral Agent and the Arrangers for payment of such amounts;Liquidity Agent:
(i) the Administrative Agent shall have received (on behalf The written consent of the Exiting LendersRating Agencies to this Amendment or, as to any Rating Agency, the written confirmation by such Rating Agency that, upon giving effect to this Amendment, the Rating Agency Condition will be met with respect to such Rating Agency;
(ii) funds necessary A certificate of the Secretary or an Assistant Secretary of each of the General Partner of NFLP, National and the Series 1996-2 Noteholder, certifying the names of the individual or individuals authorized to pay all principalsign this Amendment, interest, fees and other charges owed to together with a sample of the Exiting Lenders under the Loan Documentstrue signature of each such individual; and
(jiii) An opinion of counsel for NFLP, which counsel is acceptable to the Administrative Agent has received such other documents as may be reasonably required by Trustee, stating that the Administrative Agent or the Arrangers. Without limiting the generality amendment of the provisions of Article IX of Lease and the Credit Agreement, for purposes of determining compliance with the conditions specified in Series 1996-2 Supplement made by this Section 4, each Lender (Amendment does not affect any Noteholder other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit AgreementSeries 1996-2 Noteholder (which opinion may, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than the extent the same is based on any factual matter, rely upon an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice Officer's Certificate as to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer truth of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingfactual matter).
Appears in 1 contract
Sources: Master Motor Vehicle Lease and Servicing Agreement (Republic Industries Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, email (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed (if applicable) by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent has received a counterpart and each of the Lenders:
(i) executed counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the BorrowerAgreement, the MLP, the other Loan Parties, sufficient in number for distribution to the Administrative Agent, each Lender and the LendersBorrower;
(bii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) in each case, solely with respect to Collateral required to be granted on the Closing Date (and for the avoidance of doubt and notwithstanding anything to the contrary herein, excluding as Collateral the Equity Interest of the Operating Partnership and any direct or indirect owner thereof) a pledge agreement (together with each pledge agreement supplement delivered pursuant to Section 2.18(a), as amended, the “Pledge Agreement”), duly executed by the applicable Grantors, together with:
(A) certificates or instruments, if any, representing the Collateral pledged thereunder accompanied by all endorsements and/or powers required by the Pledge Agreement,
(B) evidence that (x) all proper financing statements have been or contemporaneously therewith will be duly filed under the Uniform Commercial Code of all applicable jurisdictions and (y) all applicable perfection requirements that the Administrative Agent has received an amended and restated promissory note payable reasonably may deem necessary or desirable in order to each Lender that has previously requested a promissory noteperfect the Liens created under the Pledge Agreement, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of covering the Credit Agreement Collateral described in the amount Pledge Agreement,
(C) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Grantor as debtor, together with (x) copies of such Lender’s Commitment other financing statements and (y) if any such financing statement covers Collateral, termination statements (or similar documents) for filing in all applicable jurisdictions as indicated on Schedule 2.01 may be necessary to the Credit Agreement terminate any such effective financing statements (as amended herebyor equivalent filings); provided that , and
(D) a Perfection Certificate duly executed by 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 noteGrantor;
(cE) evidence that all other actions, recordings and filings that the Administrative Agent has received may deem reasonably necessary or desirable in order to perfect the Liens created under the Pledge Agreement have been taken;
(iiv) 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;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel to the Loan Parties, and ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall Party either (A) certify the resolutions or other action authorizing attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a true and correct copy of its bylaws or operating, management or partnership agreementparty, and incumbency certificatessuch consents, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, licenses and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(fviii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower (x) certifying that (i1) the representations conditions specified in Sections 4.02(a) 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) have been satisfied, (ii2) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, (iv3) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required not subject to give notice under any present or contingent Environmental Claim which, if adversely determined, would reasonably be expected to
have a Material Adverse Effect on the Credit AgreementBorrower, and (v4) no action, suit, investigation or proceeding is pending or, to the knowledge of such officerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority by that (A) relates to this Agreement or against the Borrower, any Guarantor, the MLP’s general partnerother Loan Document, or any of their respective properties that could the transactions contemplated hereby or thereby, or (B) would reasonably be expected expected, either individually or in the aggregate, to have a Material Adverse EffectEffect and (y) attaching copies of the Organization Documents of each Person whose Equity Interests are included in the Collateral, if any, which Organization Documents shall (1) in the reasonable opinion of the Administrative Agent, permit the Administrative Agent to realize on such Collateral upon the occurrence and during the continuance of an Event of Default and (2) otherwise be in form and substance reasonably satisfactory to the Administrative Agent;
(gix) a fully completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower has paid (i) fees most recently ended as of the Closing Date ended for which financial statements of the Borrower are available, giving pro forma effect to the Arrangerstransactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date) and including in reasonable detail the calculations required to establish compliance with the covenants set forth in Section 7.11 and setting forth a calculation of the covenants described in the definition of Springing Mortgage Covenant Event;
(x) evidence of a successful initial public offering (the “IPO”) and concurrent private placement by the Borrower, with minimum Net Proceeds of $246,000,000 therefrom after giving effect to concurrent payment of transaction expenses incurred in connection with the Loan Documents, the IPO and related transactions; provided that at least $190,000,000 of such Net Proceeds shall be from the IPO; and
(xi) such other assurances, certificates, documents and consents as the Administrative Agent, any L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant directly to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) such counsel if requested by the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses ) to the extent invoiced prior to closing;
or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (h) provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersAgent). Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth effectiveness of this Amendment shall not be effective until is subject to the date each satisfaction of the following conditions precedent has been satisfied:precedent.
(a) the The Administrative Agent has shall have received a counterpart each of the following: (i)counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, each L/C Issuer and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender with a Commitment shown on Schedule 2.01 attached hereto; (ii)a Note executed by the Borrower in favor of each New Lender requesting a Note; (iii)a certificate of a Responsible Officer of the Borrower (A) certifying as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Amendment, (B) certifying that has previously requested attached thereto is a promissory notetrue, as applicablecorrect and complete copy of the Organization Documents of the Borrower, or certifying that is requesting a promissory note pursuant to Section 2.09(asuch Organization Documents were delivered on the Closing Date and certifying that since such date there have been no changes thereto and (C) attaching resolutions adopted by the board of directors (or other governing body) of the Credit Agreement in Borrower authorizing and approving the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date transactions contemplated hereunder and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment Amendment; (iv)a certificate evidencing the existence and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as good standing of the Fifth Amendment Effective Date or contain appropriate attachmentsBorrower, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization issued as of a recent datedate by the applicable Governmental Authority of its jurisdiction of organization; (v)a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, and (iii) a certificate from the chief financial officer of LLP, covering such matters concerning the Borrower and this Amendment as the MLP (Arrangers may reasonably request, in form and substance reasonably satisfactory to the Arrangers, such opinion to be addressed to the Administrative AgentAgent and each Lender; (vi)(A) quarterly financial statements and compliance certificate as required by the Existing Credit Agreement for the fiscal quarter ended September 30, ▇▇▇▇▇ Fargo Securities2014, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo SecuritiesB) pro forma consolidated financial statements for the Borrower and its Subsidiaries for the nine-month period ended September 30, LLC and RBC Capital Markets, together, 2014 (the “ArrangersPro Forma Financial Statements”)) certifying that, after consisting of a consolidated statement of earnings and a balance sheet, in each case giving pro forma effect to this Fifth Amendmentthe Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of earnings), the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed certified by a Responsible Officer of the Borrower certifying that (i) 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the first date each of (the “Amendment No. 4 Effective Date”) on which the following conditions precedent has shall have been satisfied:
satisfied (or waived by the Agent and the Purchasing Term Lender): (a) the Administrative Agent has shall have received a counterpart (i) counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, Agent and the Lenders;
Purchasing Term Lender, (bii) from each of the Administrative Agent has received an amended Consenting Lenders that, collectively, constitute the Required Lenders before giving effect to the Non-Consenting Lender Assignments, a duly executed Lender Consent and restated promissory note payable (iii) after giving effect to each the Non-Consenting Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Assignments and the operation of the proviso set forth in Section 2.09(a9.04(b)(ii)(C) of the Credit Agreement in Agreement, a Lender Consent duly executed by the amount of such Lender’s Commitment as indicated on Schedule 2.01 Purchasing Term Lender and the other Consenting Lenders constituting all Lenders; (b) to the Credit Agreement (as amended hereby); provided that each such extent requested by the Agent, the Agent and the Purchasing Term Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has shall have received (i) a certificate of each Loan Party, dated as of the Fifth Amendment No. 4 Effective Date and executed by an appropriate officerits Secretary, Assistant Secretary or director, which shall (A) certify the resolutions of its Board of Directors, members or other action body authorizing the execution, delivery and performance of this Fifth Amendment (and any agreements relating thereto) to which it is a party, (B) certify that certain documents previously delivered to identify by name and title and bear the Administrative Agent are in full force and effect as signatures of the Fifth other officers of such Loan Party authorized to sign the Amendment Effective Date or (and any agreements relating thereto) to which it is a party, (C) either (1) contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each such Loan Party (and in the case of any such Loan Party, certified by the relevant authority of the jurisdiction of organization of such Loan Party Party), and a true and correct copy of its bylaws by-laws, memorandum and articles of incorporation or operating, management management, partnership or partnership agreementequivalent agreement to the extent applicable, in each case, certified as of a recent date or (2) include a written certification by such Loan Party’s secretary, assistant secretary or other Responsible Officer that such Loan Party’s certificate or articles of incorporation or organization or other applicable constitutive documents most recently certified and incumbency certificatesdelivered to the Agent prior to the Amendment No. 4 Effective Date pursuant to the Loan Documents remain in full force and effect on the Amendment No. 4 Effective Date without modification or amendment since such original delivery and (D) either (1) attach copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Amendment and certify that such consents, licenses and approvals are in full force and effect, or (2) state that no such consents, licenses or approvals are so required and (ii) a good standing certificate for each Loan Party from the applicable governmental authority of its jurisdiction of incorporation or organization as of a recent date, incorporation; (c) the Agent and (iii) the Purchasing Term Lender shall have received a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower dated the Amendment No. 4 Effective Date certifying that (ia) the representations and warranties contained of each Loan Party set forth in Article V Section 4 of the Credit Agreement are this Amendment shall be true and correct in all material respects on and as of such date (unless the Amendment No. 4 Effective Date before and after giving effect to this Amendment; provided that, to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects as of such earlier date (excluding the representations set forth in Section 3.13 and Section 3.15(a) of the Credit Agreement which shall be true and correct in all material respects as of the Amendment No. 4 Effective Date after giving effect to this Amendment); provided further that any representation and warranty that is qualified as to materiality or “Material Adverse Effect” shall be true and correct in all respects on the Amendment No. 4 Effective Date or on such earlier date), as the case may be after giving effect to any such qualification as to materiality or “Material Adverse Effect” and (iib) no Default or Event of Default has shall have occurred and is be continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to both before and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable after giving effect to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closingAmendment;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Clean Harbors Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until the date each when, and only when, GECCPR shall have received all of the following conditions precedent has been satisfieddocuments, each document (unless otherwise indicated) being dated the date hereof, in form and substance satisfactory to GECCPR:
(a) An option dated the Administrative Agent has received a counterpart date hereof in the form attached hereto as Exhibit A, from the law firm of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the BorrowerShack & ▇▇▇▇▇▇, the MLP, the other Loan Parties, the Administrative Agent, and the LendersP.C.;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory notePromissory notes, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement substantially in the form of Exhibit B hereto, evidencing the additional indebtedness resulting from the increased loan 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 being made available to the Borrower promptly after receiving such replacement promissory notepursuant to this Amendment;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case Personal property mortgages in form and substance acceptable to GECCPR and executed by the Administrative Agent Borrower, or ▇▇▇▇▇▇▇▇ Hospitality Group, Inc., previously ▇▇▇▇▇▇▇▇ Hospitality Management Corporation, as the case may be, creating a continuing first priority security interest in favor of GECCPR covering the additional furniture, fixtures, machinery, and its counselequipment, including motor vehicles, financed pursuant to this Amendment;
(d) Letters of consent from each of the Guarantors acknowledging and consenting to this Amendment and the extension of the guarantees up to 50% of the additional loan provided hereby;
(e) all governmental A letter of amendment signed by The Mitsubishi Bank, Limited, and third party consents the Government Development Bank for Puerto Rico, in form and substance satisfactory to GECCPR and its legal counsel, amending the Mortgagee Estoppel, Consent and Subordination Agreement executed by said parties pursuant to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Loan Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed Certified copies of all partnership action taken by a Responsible Officer of the Borrower certifying that (i) to authorize the representations execution and warranties contained in Article V delivery of the Credit Agreement are true this Amendment and correct in all material respects on and as of such date (unless such representations and warranties specifically refer any other documents or instruments 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the delivered by Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effecthereunder;
(g) Certified copies of all corporate action taken by the Guarantors and the corporate partners of the Borrower has paid (i) fees to authorize the Arrangers, the Administrative Agent (on behalf execution and delivery of itself this Amendment and the Lenders) and any other fees and expenses due and payable pursuant documents or instruments to any fee letters applicable be delivered to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closingGECCPR hereunder;
(h) A certification from an authorized signatory of the Borrower has (i) delivered an amendment to each applicable Mortgage to extend Borrower, the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable MortgagesGuarantors, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment Borrower's corporate partners as the case may be, certifying the names and true signatures of such amounts;the officers authorized to sign this Amendment and any other documents or instruments to be delivered to GECCPR pursuant hereto; and
(i) the Administrative Agent shall have received (on behalf A certificate signed by a duly authorized officer of the Exiting Lenders) funds necessary to pay all principal, interest, fees Borrower stating that the representations and other charges owed to warranties made by the Exiting Lenders under Borrower in the Loan Documents; and
(j) the Administrative Agent has received such other documents Agreement are true, accurate, and complete as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness date of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Loan Agreement (WMS Hotel Corp)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the date each of the following conditions precedent has been satisfiedhereof if, and only if on such date:
(a) the The Administrative Agent has shall have received a counterpart duly executed copies of this Fifth Amendment from the Company and each Lender (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, including each New Lender and the Lenderseach Departing Lender);
(b) the 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) duly executed copies of the Credit Agreement Reaffirmation in the amount form of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that Exhibit A attached hereto from 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 noteSubsidiary Guarantor;
(c) the The Administrative Agent has shall have received (i) a secretary’s certificate of each Loan PartyBorrower and Subsidiary Guarantor confirming or supplementing the matters set forth in the most recent secretary’s certificate delivered by such Borrower or Subsidiary Guarantor in connection with the Credit Agreement, dated as which certificate shall certify resolutions of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions board of directors of such Borrower or other action Subsidiary Guarantor authorizing the execution, delivery and performance of this Fifth the Amendment and the Loan Documents (B) certify that certain documents previously delivered after giving effect to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”Amendment)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent has received opinions and the Lenders and dated the date hereof) of (i) ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇▇▇ LLP, special counsel to for the Loan Parties Parties, addressing matters of California, New York and Delaware law, and (ii) local Arizona, Georgia and Wisconsin counsel for the domestic Loan Parties which are Material Subsidiaries or Subsidiaries that are required to be Subsidiary Guarantors as of the date hereof in each jurisdiction applicable order for the Company to comply with Section 6.14 of the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentCredit Agreement, in each case in form case, with respect to general corporate and substance acceptable to organizational matters, due authorization, execution and delivery of the Amendment, absence of conflicts with law and material agreements, no disturbance of prior security interest, the enforceability of this Amendment and the Credit Agreement (as amended by the Amendment) and such other matters as the Administrative Agent and its counselshall reasonably request;
(e) all governmental and third party consents the Administrative Agent shall have administered the reallocation of the Revolving Credit Exposures on the effective date of such increase ratably among the Revolving Lenders (including the New Lenders) after giving effect to the transactions contemplated hereby, the obtaining of which is a condition increase to the MLP’sAggregate Revolving Commitment; provided, that (i) the Borrower’s Company hereby agrees to compensate the Lenders for all losses, expenses and liabilities incurred by any Lender (including any Departing Lender) in connection with the sale or their affiliates’ funding obligations under assignment of any Eurocurrency Loan resulting from such reallocation on the terms and in the manner set forth in Section 2.16 of the Credit Agreement, have been obtained and (ii) the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in the Credit Agreement shall be in full force and effectnot apply to the reallocation of Revolving Credit Exposures effected pursuant to this clause (e);
(f) the Administrative Agent has Departing Lender shall have received a certificate signed by a Responsible Officer payment in full in cash in immediately available funds of all of the Borrower certifying that (i) 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 Obligations owing 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice it under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees The Administrative Agent shall have received any and all documentation required to be delivered by each New Lender pursuant to the Arrangersterms of the Credit Agreement, the Administrative Agent (on behalf of itself duly completed and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closingexecuted by such New Lender;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the The Administrative Agent shall have received (on behalf all fees and expenses of the Exiting Lenders) funds necessary Administrative Agent (including, to pay all principalthe extent invoiced, interest, attorneys’ fees and other charges owed to expenses) in connection with the Exiting Lenders under the Loan DocumentsCredit Agreement (including this Amendment); and
(ji) The Lead Arrangers and the Administrative Agent has received such other documents as may be reasonably required by Agent, including for the Administrative Agent or the Arrangers. Without limiting the generality benefit of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender Lenders (other than an Exiting the Departing Lender) that has signed this Fifth Amendment ), shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, received all fees payable in each case, in accordance connection with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders Agreement (including the Exiting Lendersthis Amendment) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingas separately agreed.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until on the first date on which each of the following conditions precedent has shall have been satisfied:satisfied or waived in writing (such date being referred to herein as the “First Amendment Effective Date”):
(a) the Administrative Agent has shall have received a counterpart counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) duly executed and delivered by the BorrowerBorrowers, the MLP, the other Loan PartiesGuarantor, the Administrative Agent, each Increasing Lender, each Lender and the Lenderseach L/C Issuer;
(b) the Administrative Agent has shall have 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 from 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 Parent Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, the Parent Borrower dated as of the Fifth First Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “ArrangersOfficer’s Certificate”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer (x) certifying and attaching the resolutions adopted by each of the Borrower Borrowers and the Guarantor approving or consenting to the Incremental Revolving Increase, and (y) certifying that (i1) the representations and warranties contained in Article V of the Existing Credit Agreement and in the other Loan Documents are true and correct in all material respects (or, in the case of the representations and warranties in Sections 5.16 and 5.22 of the Existing Credit Agreement or any representation and warranty that is qualified by materiality, in all respects) on and as of such date the First Amendment Effective Date (unless other than the representations in Section 5.05(c) and Section 5.18 of the Existing Credit Agreement, which were required to be made only as of the Closing Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be they were true and correct in all material respects (or, in the case of the representations and warranties in Sections 5.16 and 5.22 of the Existing Credit Agreement or any representation and warranty that is qualified by materiality, in all respects) as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), (ii) no Default or Event respectively, of Default has occurred and is continuing under Section 6.01 of the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Existing Credit Agreement, and (v2) no actionas of the First Amendment Effective Date, suit, investigation or proceeding is pending or, and immediately after giving effect to the knowledge Incremental Revolving Increase, no Default exists;
(c) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrowers and the Guarantor, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such officermatters concerning the Borrowers and the Guarantor, threatened this Amendment and the other Loan Documents as the Administrative Agent may reasonably request;
(d) a favorable opinion of ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP, Ontario counsel to Ventas SSL and Ventas Canada, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such matters concerning Ventas SSL, Ventas Canada and this Amendment and the Loan Documents to which Ventas SSL and/or Ventas Canada is a party as the Administrative Agent may reasonably request;
(e) a favorable opinion of in-house counsel to the Guarantor, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such matters concerning the Guarantor and this Amendment as the Administrative Agent may reasonably request; and
(f) all fees required to be paid by the Borrowers on or prior to the First Amendment Effective Date pursuant to the Loan Documents and all expenses required to be reimbursed by the Borrowers on or prior to the First Amendment Effective Date pursuant to the Loan Documents shall have been paid, provided that invoices for such expenses have been presented to the Parent Borrower a reasonable period of time (and in any court or before any arbitrator or Governmental Authority by or against event not less than two (2) Business Days) prior to the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;First Amendment Effective Date.
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX the last paragraph of Section 9.03 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 43, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Amendment and (ii) each other document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, 3 to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed First Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until Subject to Section 6.19, the date each effectiveness of this Agreement is subject to satisfaction or waiver by Agent of the following conditions precedent has been satisfiedprecedent:
(a) Unless waived by Agent and Lenders, Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or facsimiles, including pdfs or similar electronic transmission (which may be followed promptly by telecopy or other electronic transmissionoriginals,) unless otherwise specified, each properly executed by a Senior Officer of Borrower or the Borrowerapplicable Guarantor (including the Target Company), the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicabledated on, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount case of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Partythird-party certificates, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions on or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent datedate before, the Closing Date and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower each Lender and their subsidiaries legal counsel:
(on a consolidated basisi) are solventexecuted counterparts of the Loan Documents;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in executed original counterparts of each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentSubordination Agreement, in each case in form and substance acceptable satisfactory to the Administrative Agent and its counselAgent;
(eiii) all governmental executed copies of the First Lien Credit Documents and third party consents the Term Loan (as defined therein) shall have funded in accordance with the terms of the First Lien Credit Documents; (Reserved);
(iv) (Reserved);
(v) amendments to the transactions contemplated herebyOrganization Documents of the Loan Parties in form and content reasonably acceptable to Agent;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Senior Officers of Borrower, each Guarantor, as Agent may require to establish the obtaining identities of which and verify the authority and capacity of each Senior Officer thereof authorized to act as a Senior Officer thereof;
(vii) such evidence as Agent and any Lender may reasonably require to verify that Borrower and each Guarantor is a condition duly organized or formed, validly existing, in good standing and qualified to the MLP’s, the engage in business in Borrower’s or their affiliates’ funding obligations under such Guarantor’s jurisdiction of organization and in each foreign jurisdiction in which Borrower or such Guarantor is required to be qualified, including copies of Borrower’s and each Guarantor’s Organization Documents certified by the Credit Agreementcorporate Secretary, have been obtained and shall be certificates of good standing and/or qualification to engage in full force and effectbusiness and, if requested by Agent, tax clearance certificates;
(fviii) a Perfection Certificate signed by a Senior Officer of the Administrative Agent has received Loan Parties;
(ix) a certificate signed by a Responsible Senior Officer of the Borrower certifying that (i1) the representations and warranties contained made by each Loan Party in Article V of the Credit Agreement Loan Documents are true and correct in all material respects on and as of such date the Closing Date (unless except to the extent such representations and warranties specifically refer to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects as of such earlier date), (ii2) each Loan Party is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default has shall have occurred and is continuing under the Credit Agreement as of such datebe continuing, (iii3) since December 31, 2015, there has been no event or circumstance that which has or could reasonably be expected to have has had a Material Adverse Effect, and (iv4) there is no litigationa pro forma calculation of the Total Leverage Ratio of less than 4.50x, investigation or proceeding known Senior Leverage Ratio of less than 3.00x, Adjusted EBITDA of the Parent on a Consolidated Basis of not less than $15,630,000, and Adjusted EBITDA of Borrower on a Consolidated Basis of not less than $19,130,000 (in each case giving effect to the Target Transaction and affecting the Borrower or any affiliate for which funding of the Borrower is Term Loans (as defined in the First Lien Credit Agreement) on the Closing Date);
(x) (Reserved);
(xi) an opinion of K▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇ LLP, M▇▇▇▇▇ ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, K▇▇▇▇▇▇ M▇▇▇▇▇▇▇ & K▇▇▇▇▇▇ PLL and Bilzin S▇▇▇▇▇▇ ▇▇▇▇▇ Price & A▇▇▇▇▇▇ LLP, each legal counsel to the Loan Parties, as to matters Agent may reasonably request, dated as of the Closing Date and otherwise in form and substance satisfactory to Agent;
(xii) receipt of certificates of insurance required to give notice be maintained under Section 6.09, from insurance carriers acceptable to Agent, which certificates of insurance are in such forms and evidence such amounts of insurance coverage and deductibles acceptable to Agent pursuant to insurance policies with additional insured and lender loss payable clauses in favor of Agent and the Credit AgreementLenders;
(xiii) Loan Parties shall have received all Governmental Authorizations and all Consents, in each case that are necessary in connection with the entry into, consummation and (v) performance of the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and no action, suitrequest for stay, investigation petition for review or proceeding is pending orrehearing, reconsideration, or appeal with respect to any of the knowledge of such officerforegoing shall be pending, threatened in and the time for any court or before any arbitrator or applicable Governmental Authority to take action to set aside its consent on its own motion shall have expired;
(xiv) Agent and the Lenders shall have received all documentation and other information required by such institution or against its bank regulatory authorities under Sanctions, Anti-Terrorism Laws, Anti-Corruption Laws and other Laws, including the USA PATRIOT Act;
(xv) Agent shall have received evidence, reasonably satisfactory to Agent, that Borrower has completed the Target Transaction in accordance with the terms of the Target Acquisition Documents (without any material amendment thereto or waiver thereunder unless consented to by Agent). Agent shall have received a copy of the Target Acquisition Agreement and all supplements, amendments, installments, documents and agreements related thereto, certified in an Officer’s Certificate, dated the Closing Date, as correct and complete;
(xvi) (Reserved);
(xvii) receipt of a copy of the representations and warranty insurance in favor of the Borrower, any Guarantorfrom an insurance carrier acceptable to Agent, the MLP’s general partner, or any which policy of their respective properties that could reasonably be expected insurance is in such form and evidences such amounts of insurance coverage and deductibles acceptable to have a Material Adverse Effect;Agent; and
(gxviii) the such other assurances, certificates, documents, consents or opinions as Agent reasonably may require.
(b) All amounts payable under Section 2.02, shall have been paid.
(c) Unless waived by Agent, Borrower has shall have paid (i) fees to the Arrangers, the Administrative all Attorney Costs of Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) or on the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved incurred by or be acceptable or satisfactory to a Lender it through the closing proceedings (other than an Exiting Lenderprovided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Agent). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Securities Purchase Agreement and Security Agreement (Fusion Telecommunications International Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of this Agreement and the date each amendment and restatement of the Existing Credit Agreement as set forth herein is subject to the following conditions precedent has been satisfiedthat:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent has received a counterpart and each of the Lenders:
(i) executed counterparts of this Fifth Amendment Agreement;
(which may be by telecopy or other electronic transmissionii) a Revolving Credit Note executed by the BorrowerBorrower in favor of each Lender requesting a Revolving Credit Note and if requested, a Swing Line Note executed by the MLPBorrower in favor of the Swing Line Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a secretary or assistant secretary or similar officer of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan PartiesDocuments to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of incorporation or formation;
(v) a customary opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the enforceability of the Loan Documents and other matters reasonably requested by the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (ivi) a certificate of each Loan Party, dated as a Responsible Officer of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall Borrower either (A) certify the resolutions or other action authorizing attaching copies of all third party consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of this Fifth Amendment the Loan Documents to which it is a party, and (B) certify stating that certain documents previously delivered to the Administrative Agent such consents, licenses and approvals are in full force and effect as of the Fifth Amendment Effective Date effect, or contain appropriate attachments(B) stating that no such consents, including the certificate licenses or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) approvals are solventso required;
(dvii) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying certifying, as of the Closing Date, (A) that (i) the representations and warranties contained in Article V of the Credit Agreement Loan Parties set forth in the Loan Documents are true and correct in all material respects on (except to the extent that such representation and as of warranty is qualified by materiality, in which case such date (unless representations and warranties shall have been true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be they are true and correct in all material respects as of such earlier date), (iiB) no Default or Event of Default has occurred and is continuing under or, after giving effect to the initial Credit Agreement as Extension contemplated hereunder (if any) or the application of such dateproceeds therefrom, immediately would result therefrom; and (iiiC) since December 31, 2015, that there has been no event or circumstance since the date of the 3Q24 Financial Statements that has had or could be reasonably be expected to have or result in, either individually or in the aggregate, a Material Adverse Effect, ; and
(ivviii) there is no litigation, investigation or proceeding known to and affecting a certificate signed by the chief financial officer of the Borrower or any affiliate for which certifying that the Borrower (on a consolidated basis with the Subsidiaries), after giving effect to the initial Credit Extension contemplated hereunder (if any), the application of the proceeds thereof and the consummation of the other transactions contemplated hereby, is Solvent.
(b) The representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects (except to the extent that such representation and warranty is qualified by materiality, in which case they shall have been true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date.
(c) Any fees required to give notice under be paid by the Credit AgreementBorrower on or before the Closing Date shall have been paid, and (v) no action, suit, investigation or proceeding is pending or, provided that with respect to any legal fees the Borrower shall have been presented with a reasonably detailed invoice at least two Business Days prior to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority Closing Date.
(d) Unless waived by or against the Borrower, any GuarantorAdministrative Agent, the MLP’s general partnerBorrower shall have paid all fees, or any charges and disbursements of their respective properties that could reasonably be expected counsel to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(he) the Borrower has (i) delivered an amendment to The Administrative Agent and each applicable Mortgage to extend the maturity date described therein Lender shall have received all documentation and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to other information that the Administrative Agent and each such Lender shall have reasonably requested in order to comply with its respective obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Arrangers for payment of such amounts;Patriot Act.
(if) There shall has been no event or circumstance since the Administrative Agent shall have received (on behalf date of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent 3Q24 Financial Statements that has received such other documents as may had or could be reasonably required by expected to have or result in, either individually or in the Administrative Agent or the Arrangersaggregate, a Material Adverse Effect. Without limiting the generality of the provisions of Article IX of the Credit AgreementSection 9.04, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, hereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment Agreement shall not be become effective until when, and only when, the date each of the following conditions precedent has been satisfiedBank shall have received:
(ai) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) Agreement, executed by the each Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(bii) 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 Joinder Agreement substantially in the amount of such Lender’s Commitment form attached hereto as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that Exhibit B, executed by 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 noteBorrower;
(ciii) the Administrative Agent has received Subordination Agreement substantially in the form attached hereto as Exhibit C, executed by each Borrower and each Junior Creditor named therein;
(iiv) true and complete copies of the organizational documents and governing documents and all recorded amendments thereto of Versar International and Advent for its respective jurisdiction of organization;
(v) good standing certificate of Versar International and Advent for its respective jurisdiction of organization and for each jurisdiction in which Versar International and Advent conducts business as of a date no earlier than thirty (30) days prior to the date of this Agreement;
(vi) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date date of this Agreement by the Secretary of Versar International and executed by an appropriate officer, which shall Advent covering:
(A) certify true and complete copies of Versar International and Advent’s organizational and governing documents and all amendments thereto;
(B) true and complete copies of the resolutions or other action of its respective Board of Directors authorizing (1) the execution, delivery and performance of this Fifth Amendment the Loan Documents to which it is a party, (2) the borrowings under the Loan Documents, and (B3) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as granting of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified Liens contemplated by the relevant Loan Agreement and the Loan Documents to which Versar International and Advent is a party;
(C) the incumbency, authority and signatures of the jurisdiction officers of organization Versar International and Advent authorized to sign this Agreement and the other Loan Documents to which Vesar International and Advent is a party; and
(D) the identity of such Loan Party current directors, common stock holders and a true other equity holders of Versar International and correct copy of its bylaws or operatingAdvent, management or partnership agreementas well as their respective percentage ownership interests;
(vii) certified copies, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization dated as of a recent date, of financing statement searches of Versar International and Advent, as the Bank shall request, accompanied by written evidence (iiiincluding any termination statements) a certificate from that the chief financial officer of Liens indicated in any such financing statements either constitute Permitted Liens or have been or, will be terminated or released;
(viii) evidence satisfactory to the Borrower and the MLP (Bank that financing statements in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC Bank have been properly filed in each office where necessary to perfect the security interest of the Bank in the Collateral of Versar International and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventAdvent;
(dix) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel evidence satisfactory to the Loan Parties and (ii) local counsel in each jurisdiction applicable to Bank that the transactions contemplated by this Fifth Amendment and insurance policies of Versar International, as reasonably requested required by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Loan Agreement, have been obtained and shall be are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of the Bank;
(fx) the Administrative Agent has received a certificate signed by a Responsible Officer favorable opinion of the Borrower certifying that (i) 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate counsel for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, Versar International addressed to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan DocumentsBank; and
(jxi) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality payment of the provisions of Article IX Bank’s attorneys’ fees and expenses regarding this Agreement, the Joinder Agreement and the review of the Credit Acquisition Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Modification Agreement (Versar Inc)
Conditions of Effectiveness. This Fifth Amendment is subject to the provisions of Section 14.11 of the 2005 Credit Agreement. Section 1 of this Agreement shall not be become effective until as of the date each of first above written (the following conditions precedent has been satisfied“Amendment Effective Date”) when and only when, on or before January 9, 2009, the Administrative Agent shall have received:
(a) Notice from the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy administrative agent under the 2004 Credit Agreement that all commitments thereunder have been terminated and that all amounts payable or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;accrued under such credit agreement have been paid in full.
(b) A security agreement in substantially the form of Annex B hereto (the “Security Agreement”), duly executed by each Credit Party and each Subsidiary listed on Schedule I hereto (collectively with the Credit Parties, the “Granting Parties”), together with:
(i) acknowledgment copies or stamped receipt copies of financing statements, duly filed on or before the Amendment Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent has received an amended may reasonably request in order to perfect and restated promissory note payable to each Lender that has previously requested protect the liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(ii) the results of a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) search of the Credit Agreement Uniform Commercial Code (or equivalent) filings made with respect to the Collateral Grantors in the amount jurisdictions contemplated by clause (i) above and copies of the financing statements (or similar documents) disclosed by 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;search.
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (A Canadian security agreement in form and substance reasonably satisfactory to the Administrative Agent, ▇duly executed by J▇▇▇▇ Fargo SecuritiesApparel Group Canada, LLC LP, together with evidence of such filings and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC other actions required under the laws of the applicable jurisdiction that the Administrative Agent may reasonably request in order to perfect the liens and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;security interests created thereunder.
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.A certificate from a Responsible Officer, counsel in form and substance reasonably satisfactory to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent effect that all representations and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer warranties of the Borrower certifying that (i) the representations and warranties contained in Article V of the 2005 Credit Agreement are true true, correct and correct complete in all material respects with the same effect as if made on and as of such date (unless the Amendment Effective Date, except to the extent such representations and warranties specifically refer expressly relate to an earlier date, 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, (ii) as amended hereby; that, after giving effect to the transactions contemplated by this Amendment, no Default or Event of Default has occurred and is continuing continuing; and that each of the conditions to the effectiveness of this Amendment has been satisfied or waived (assuming satisfaction of the Administrative Agent where not advised otherwise).
(e) A certificate of the secretary, assistant secretary or general counsel of the Borrower, each Additional Obligor and each other Grantor (as defined in the Security Agreement) certifying as to the incumbency and genuineness of the signature of each officer of such Person executing this Amendment or each other Loan Document to which it is a party and certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by the Board of Directors of such Person authorizing, in the case of the Borrower, the borrowings contemplated under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the 2005 Credit Agreement, as amended hereby, and in the case of each such Person, the execution, delivery and performance of this Amendment or the Loan Documents to which it is to be a party.
(vf) no actionFavorable opinions of I▇▇ ▇. ▇▇▇▇▇▇, suit, investigation or proceeding is pending or, General Counsel to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any GuarantorCravath, the MLP’s general partnerSwaine & M▇▇▇▇ LLP, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees special counsel to the ArrangersBorrower, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses S▇▇▇▇▇▇▇ H▇▇▇▇▇▇▇ ▇▇▇▇▇ & L▇▇▇▇ LLP, Pennsylvania counsel to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein Borrower, and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments Drinker B▇▇▇▇▇ & R▇▇▇▇ LLP, New Jersey counsel to the applicable MortgagesBorrower, or has made arrangements satisfactory C▇▇▇▇▇▇ ▇▇▇▇▇ & B▇▇▇▇▇▇▇▇, Canadian counsel to the Borrower, and such other opinions as may be agreed, addressed to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice 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 Exiting Lendersaccrued fees and expenses of counsel to the Joint Lead Arrangers and Joint Bookrunners) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingamendment fees payable to the Lenders for which invoices have been received.
Appears in 1 contract
Conditions of Effectiveness. This Fifth First Amendment shall not be become effective until as of the first date (such date of effectiveness, the “First Amendment Effective Date”) on which each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has shall have received a counterpart executed counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) First Amendment, each duly executed by the Borrower, the MLP, the other Loan Parties, (i) the Administrative Agent, (ii) a Responsible Officer of each Loan Party and (iii) Consenting Lenders constituting the Required Lenders;.
(b) The Administrative Agent shall have received a fully executed copy of each of the following documents, duly executed by the parties thereto, in form and substance reasonably satisfactory to the Administrative Agent has received an amended and restated promissory note payable to (each Lender that has previously requested a promissory noteof which, 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 subject to the Credit Agreement (as amended herebyproviso below, shall be in full force and effect or all conditions precedent to the effectiveness thereto will be satisfied on the First Amendment Effective Date); provided that if the Initial Cash Pooling Documents will not be entered into on the First Amendment Effective Date, then the Administrative Agent shall have received final execution versions of such documents instead of fully executed copies:
(i) the First Amendment to Security Agreement; and
(ii) each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to of the Borrower promptly after receiving such replacement promissory note;Initial Cash Pooling Documents, as in effect on the First Amendment Effective Date.
(c) The Administrative Agent shall have also received the following, in form and substance reasonably satisfactory to the Administrative Agent has received and its legal counsel:
(i) a certificate of each Loan Partyan officer of the Company, dated as of the Fifth First Amendment Effective Date and executed by an appropriate officerDate, which shall (A) certify certifying that (i) true and complete copies of the resolutions Organization Documents of each Loan Party, including all amendments thereto (if any), are attached thereto, (ii) no such Organization Documents have been amended, modified or other action authorizing supplemented since the execution, delivery date reflected thereon and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth First Amendment Effective Date Date, (iii) attached thereto is a true and complete copy of the resolutions or contain appropriate attachmentswritten consent, including as applicable, duly adopted by the certificate board of directors, board of managers or articles of incorporation or organization or equivalent constitutional documents other applicable governing body of each Loan Party certified by Party, as delivered to the relevant authority Administrative Agent on the Restatement Effective Date, approving the terms of, and authorizing the execution, delivery and performance of, amendments to the Credit Agreement and Security Agreement as provided for therein, which includes this First Amendment, the Credit Agreement and the First Amendment to Security Agreement, which resolutions or written consent have not been modified, rescinded or amended and remain in full force and effect as of the jurisdiction of organization First Amendment Effective Date, and authorize a specified person or persons to execute this First Amendment, the First Amendment to Security Agreement and any other documents and notices to be signed and/or dispatched by it under or in connection with this First Amendment and the First Amendment to Security Agreement on its behalf, in accordance with the applicable Organization Document of such Loan Party and a true and correct copy Company as in effect at the time of its bylaws or operating, management or partnership agreementadoption thereof, and incumbency certificates, (iiiv) a good standing certificate for attached thereto are documents and certifications evidencing that each Loan Party from its jurisdiction of incorporation is duly organized or organization as of a recent dateformed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation and (iiiB) a certificate from confirming the chief financial officer accuracy of the Borrower matters set forth in Section 5(e) and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)f) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;hereof.
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested Unless waived by the Administrative Agent, in each case in form and substance acceptable to the Company shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the First Amendment Effective Date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings of this First Amendment (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and its counsel;the Administrative Agent).
(e) all governmental The representations and third party consents to warranties of the transactions contemplated hereby, the obtaining of Company and each other Loan Party contained in Section (6) below or which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under are contained in the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the with respect to representations and warranties contained in Article V of the Credit Agreement that contain a materiality qualification or are qualified by Material Adverse Effect, be true and correct and (ii) with respect to representations and warranties that do not contain a materiality qualification and are not qualified by Material Adverse Effect, be true and correct in all material respects respects, in each case, on and as of such date the First Amendment Effective Date (unless or, if 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), .
(iif) no No Default or Event of Default has occurred exists immediately prior to the First Amendment Effective Date or would exist immediately after giving effect to this First Amendment and is continuing the First Amendment to Security Agreement. Upon such effectiveness, (i) this First Amendment shall be a binding agreement between the parties hereto and their permitted assigns under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s First Amendment to Security Agent shall be a binding agreement between the parties thereto and their permitted assigns under the Security Agreement and (iii) each party hereto agrees that its consents to this First Amendment and the Arrangers’ reasonable legal fees and expenses First Amendment to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Security Agreement, for purposes of determining compliance with the conditions specified in this Section 4once delivered, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall are irrevocable and may not be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender)withdrawn. Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the The Administrative Agent shall promptly provide written notice to notify the Borrower, Company and the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth AmendmentFirst Amendment Effective Date in writing, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the first date (such date being referred to as the “Amendment No. 6 Effective Date”) when each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has (or its counsel) shall have received a counterpart (i) counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed signed by the Parent Borrower, the MLPGuarantors, the other Loan Parties, Replacement Lender and the Administrative Agent, and (ii) Lender Addenda signed by the Consenting Term B-1 Dollar Lenders and the Consenting Term B-2 Dollar Lenders;.
(b) the The Administrative Agent has shall have received an amended and restated promissory note payable to each Lender that has previously requested a promissory note(x) the legal opinion of Ropes & ▇▇▇▇ LLP, 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 counsel to the Credit Agreement Loan Parties and (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note y) the legal opinion of Smith, Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of Loan Parties, in each Loan Partycase, dated as of the Fifth Amendment No. 6 Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets .
(▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, c) The Administrative Agent shall have received (i) copies of each Organization Document for the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Parent Borrower and their subsidiaries each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 6 Effective Date or a recent date prior thereto; (on ii) signature and incumbency certificates of the officers of the Parent Borrower and each Guarantor executing this Amendment; (iii) resolutions of the Board of Directors or similar governing body of the Parent Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Amendment No. 6 Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (iv) if available, a consolidated basis) are solvent;good standing certificate from the applicable Governmental Authority of the Parent Borrower’s and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Amendment No. 6 Effective Date.
(d) The Administrative Agent shall have received, for the account of the Administrative Agent has received opinions and the Lead Arrangers, all fees payable to the Administrative Agent and the Lead Arrangers, respectively, on the Amendment No. 6 Effective Date and, to the extent invoiced at least two (2) Business Days prior to the Amendment No. 6 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 (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇ LLP, counsel in accordance with Section 10.04 of the Existing Credit Agreement.
(e) The Administrative Agent shall have received an officer’s certificate with respect to the Loan Parties Parent Borrower and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case Guarantors in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and as to satisfaction of the Arrangers for payment of such amounts;
conditions set forth in clauses (i) and (j) of this Section 3.
(f) To the extent requested at least three (3) Business Days prior to the Amendment No. 6 Effective Date (or as otherwise reasonably agreed by the Parent Borrower), any requesting Lender shall have received a Note executed by the Parent Borrower in favor of each Term B-1 Dollar Lender and Term B-2 Dollar Lender requesting a Note, if any.
(g) [Reserved].
(h) At least three (3) Business Days prior to the Amendment No. 6 Effective Date, the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees documentation and other charges owed to the Exiting Lenders information required by regulatory authorities under the Loan Documents; and
applicable “know-your-customer” and anti-money laundering rules and regulations (j) the Administrative Agent has received such other documents including a certification regarding beneficial ownership as may be reasonably required by the Administrative Agent or 31 C.F.R. § 1010.230), including the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit AgreementUSA PATRIOT Act, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, been requested in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender writing at least ten (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement10) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice Business Days prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.Amendment No. 6
Appears in 1 contract
Conditions of Effectiveness. This Fifth The effectiveness of this Third Amendment shall not be effective until (including the date each amendments contained in Section 1 hereof and agreements contained in Section 2 hereof) are subject to the satisfaction of the following conditions precedent has been satisfied:(the date of satisfaction of such conditions being referred to herein as the “Third Amendment Effective Date”):
(a) the Administrative Agent has received a counterpart of this Fifth Third Amendment (which may be by telecopy or other electronic transmission) shall have been duly executed by the Borrower, the MLPeach Guarantor, the other Loan PartiesLenders, the Administrative AgentIncremental Lenders, the Facility Agent and the Security Trustee (which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the LendersFacility Agent;
(b) a duly executed original of a Guarantor Accession Agreement made among the Administrative Agent has received an amended Additional Guarantors 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 noteFacility Agent;
(c) the Administrative Facility Agent has shall have received (i) a certificate of each Loan Party, dated as an officer or an officer of the Fifth sole member, as the case may be, of each Security Party dated the Third Amendment Effective Date and executed by an appropriate officerDate, which shall certifying (A) certify either (i) that attached thereto is a true and complete copy of each Organizational Document of such Security Party, or (ii) that the copies of such Security Party’s Organizational Documents as previously certified and delivered to the Facility Agent on the Closing Date (or, if later, the date of joinder of such Security Party as a Guarantor under the Loan Documents) remain in full force and effect on the Third Amendment Effective Date, without modification or amendment since such prior date of certification and delivery, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or other action sole member of such Security Party authorizing the execution, delivery and performance of this Fifth Third Amendment and the other Loan Documents (Bincluding, if applicable, as amended by this Third Amendment) certify to which such Security Party is a party and, in the case of the Borrower, the borrowing of the Loans hereunder, and that certain documents previously delivered to the Administrative Agent such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as of to the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents incumbency and specimen signature of each officer, director and attorney-in-fact authorized to execute this Third Amendment and any Loan Party certified by the relevant authority of the jurisdiction of organization Document or any other document delivered in connection herewith or therewith on behalf of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificatesSecurity Party, (ii) a good standing certificate for as to the goodstanding of each Loan Security Party from as of a date reasonably near to the Third Amendment Effective Date certifying that each Security Party is duly formed and in goodstanding under the laws of its jurisdiction of incorporation or organization as of a recent date, and (iii) an original or certified copy power of attorney under which any Loan Document is executed on behalf of a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventSecurity Party;
(d) the Administrative Facility Agent has shall have received opinions copies of all consents which a Security Party requires to enter into, or make any payment under, any Loan Document, each certified as of a date reasonably near the Third Amendment Effective Date by an authorized person of such party as being a true and correct copy thereof, or certification by such authorized person that no such consents are required;
(ie) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel the Facility Agent shall have received such documentation and other evidence as is reasonably requested by the Facility Agent or a Lender in order for each to carry out and be satisfied with the Loan Parties and (ii) local counsel results of all necessary “know your customer” or other checks which it is required to carry out in each jurisdiction applicable relation to the transactions contemplated by this Fifth Third Amendment and as reasonably requested by the Administrative Agentother Loan Documents, in each case in form including without limitation obtaining, verifying and substance acceptable to recording certain information and documentation that will allow the Administrative Facility Agent and its counsel;
(e) all governmental and third party consents each of the Lenders to identify each Security Party in accordance with the transactions contemplated hereby, requirements of the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effectPATRIOT Act;
(f) two valuations, each dated no more than thirty (30) days prior to the Administrative Third Amendment Effective Date, addressed to the Facility Agent has received a certificate signed by a Responsible Officer (at the expense of the Borrower certifying Borrower) by an Approved Broker indicating the Fair Market Value of each of the Delivered Vessels, the Additional Young Vessels identified in Annex I to the First Amendment and each of the Additional Young Vessels to be financed by the 2020 Incremental Commitments;
(g) the Facility Agent shall have received in form approved by the Facility Agent an amendment to each Vessel Mortgage duly executed by the owner of the relevant Vessel reflecting this Third Amendment, and evidence that such amendment has been duly recorded in accordance with the Laws of the Approved Flag;
(h) evidence that each Additional Guarantor who is the owner of an Additional Young Vessel has duly opened an Operating Account and has delivered to the Facility Agent all resolutions, signature cards and other documents or evidence required in connection with the opening, maintenance and operation of such accounts with the Account Bank;
(i) a duly executed original of (i) an amendment to the Membership Interest Pledge and (ii) an Account Pledge with respect to each Additional Guarantor who will be the owner of an Additional Young Vessel, and of any documents required to be delivered thereunder;
(j) the Borrower shall have paid all costs, fees, expenses and other amounts due and payable pursuant to the Loan Documents and in connection with this Third Amendment (including without limitation upfront fees payable in connection with that certain Fee Letter, dated June 9, 2020, made among the Borrower and the Facility Agent, relating to upfront fees in connection with this Third Amendment);
(k) the Facility Agent shall have received such legal opinions and other documents reasonably requested by the Facility Agent in connection with this Third Amendment; and
(l) (i) all representations and warranties contained set forth in Article V Section 3 of the Credit Agreement are this Third Amendment shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the Third Amendment Effective Date with the same effect as though made on and as of such date (unless date, except to the extent such representations and warranties specifically refer expressly relate to an earlier date, date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date), ) and (ii) no Default or Event of Default has shall have occurred and is be continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, would occur after giving effect to the knowledge of such officer, threatened in any court Incremental Commitments or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, incurrence of the Administrative Agent (on behalf of itself Loans pursuant to this Third Amendment and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf application of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproceeds therefrom.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received following, each properly executed (if applicable) by a counterpart Responsible Officer of this Fifth Amendment the signing Loan Party (which which, subject to Section 10.10(b), may be include any Electronic Signatures transmitted by telecopy telecopy, emailed pdf. or any other electronic transmission) means that reproduces an image of an actual executed by signature page), each dated the BorrowerClosing Date (or, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount case of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate certificates of each Loan Partygovernmental officials, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Closing Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement from each party hereto;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing in its jurisdiction of organization or formation;
(v) a customary opinion of L▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& W▇▇▇▇▇▇ Fargo SecuritiesLLP, LLC counsel to the Loan Parties, and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) V▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, special Maryland counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentGuarantor, in each case in form and substance acceptable addressed to the Administrative Agent and its counseleach Lender;
(evi) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (ithe conditions specified in Sections 4.02(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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (vb) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effectbeen satisfied;
(gvii) the Audited Financial Statements of the Guarantor referred to in Section 5.05(a); and
(viii) a solvency certificate from the chief financial officer, treasurer or other senior financial officer of the Borrower has substantially in the form attached hereto as Exhibit F.
(b) Any fees required to be paid (i) fees on or before the Closing Date pursuant to the ArrangersFee Letters shall have been paid.
(c) The Borrower shall have paid all reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (on behalf directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least five (5) Business Days prior to the Closing Date, plus such additional amounts of itself such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Arrangers Administrative Agent).
(d) The Closing Date Refinancing shall be consummated substantially simultaneously with the Closing Date.
(i) The Administrative Agent shall have received, at least five days prior to the Closing Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Closing Date and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to closing;
(h) the Closing Date, any Lender that has requested, in a written notice to the Borrower has 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 (i) delivered an amendment provided that, upon the execution and delivery by such Lender of its signature page to each applicable Mortgage to extend this Agreement, the maturity date described therein and condition set forth in this clause (ii) paid funds sufficient shall be deemed to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangerssatisfied). Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Safehold Inc.)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent has received a counterpart Agent:
(i) executed counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) Agreement executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, each Lender and the Lenderseach Loan Party;
(bii) each Note executed by the Borrowers in favor of each Lender requesting a Note or Notes;
(iii) the Security Agreement executed by each Loan Party,
(iv) financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent has received an amended may deem necessary in order to perfect the Liens and restated promissory note payable security interests created or purported to each Lender that has previously requested a promissory notebe created under the Security Agreement, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of covering 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 noteCollateral described therein;
(cv) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any property of any Loan Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent has received deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Agreements (iother than Permitted Liens);
(vi) the Perfection Certificate, executed by each Loan Party;
(vii) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Closing Date and executed by an appropriate officera secretary, assistant secretary or other senior officer (as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its shareholders, partners, managers, members, board of directors, board of managers or other action governing body authorizing the execution, delivery and performance of this Fifth Amendment the Loan Documents to which it is a party and, in the case of the Borrowers, the borrowings hereunder, and (B) certify that certain documents previously delivered to the Administrative Agent such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect as effect, (B) identify by name and title and bear the signatures of the Fifth Amendment Effective officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a party on the Closing Date or contain appropriate attachments, including and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent constitutional documents thereof) of each such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws by-laws or operating, management management, partnership or partnership agreementsimilar agreement and (y) that such documents or agreements have not been amended, restated, amended and incumbency certificatesrestated, supplemented or otherwise modified (except as otherwise attached to such certificate and certified therein as being the only amendments, restatements, amendments and restatements, supplements or modifications thereto as of such date) and (ii) a good standing (or equivalent) certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date for such Loan Party from (A) its jurisdiction of organization and (iiiB) in each jurisdiction in which it is qualified to engage in business where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except, in the case of this clause (B), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a certificate from the chief financial of a duly authorized officer of each Loan Party either (A) stating that all consents, licenses and approvals required in connection with the Borrower execution, delivery and performance by such Loan Party and the MLP validity against such Loan Party of the Loan Documents to which it is a party have been received and are in full force and effect or (B) stating that no such consents, licenses or approvals are so required in connection with the consummation by such Loan Party of the Transactions;
(ix) a certificate signed by a Responsible Officer of Holdings certifying that the conditions set forth in Section 4.01(f), (g), (h) and (i) have been satisfied as of such date;
(x) a solvency certificate, substantially in the form of Exhibit L from a Responsible Officer of Holdings (or, at the option of Holdings, a customary third-party opinion as to the solvency of Holdings and substance reasonably satisfactory to its Subsidiaries, on a consolidated basis);
(xi) a Borrowing Base Certificate covering the Borrowing Base as of the Closing Date, with customary supporting documentation;
(xii) certificates of insurance evidencing that the Administrative Agent, for the benefit of the Secured Parties, shall be named as an additional insured, assignee, mortgagee and/or loss payee, as appropriate, with respect to all applicable insurance coverage and policies of the Loan Parties; and
(xiii) the executed opinion of Akin Gump ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.& ▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the Lenders and the L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request.
(b) (i) Any fees required to be paid on or before the Closing Date to the Administrative Agent, any Arranger or the Lenders pursuant to the Fee Letters shall have been paid and (ii) local counsel in each jurisdiction applicable any costs and expenses required to be paid on or before the transactions contemplated by this Fifth Amendment and as reasonably requested by Closing Date to the Administrative Agent, in each case in form and substance acceptable any Arranger or the Lenders to the Administrative Agent and its counsel;extent invoices have been received by Holdings at least two Business Days prior to the Closing Date (or such later date as reasonably agreed by Holdings) shall have been paid.
(c) [Reserved].
(d) On or prior to the Closing Date, the Acquisition shall have been consummated pursuant to the Acquisition Agreement (without giving effect to any amendments, waivers, modifications or consents that are materially adverse to the interests of the Lenders or the Arrangers, without the consent of the Arrangers).
(e) all governmental and third party consents On or prior to the transactions contemplated herebyClosing Date, the obtaining of which is a condition Initial Rights Offering shall have been consummated pursuant to the MLP’sEquity Commitment Letter (without giving effect to any amendments, waivers, modifications or consents that are materially adverse to the Borrower’s interests of the Lenders or their affiliates’ funding obligations under the Credit AgreementArrangers, without the consent of the Arrangers), and Holdings shall have been obtained and shall be received the proceeds of such Initial Rights Offering in full force and effect;an aggregate amount not less than the Minimum Rights Offering Amount.
(f) On the Administrative Agent has received a certificate signed by a Responsible Officer Closing Date, neither Holdings nor any of its Subsidiaries shall have any material Indebtedness for borrowed money (other than any Loans made and Letters of Credit issued on the Borrower certifying that Closing Date), purchase money Indebtedness, Capital Lease Obligations, working capital facilities for Foreign Subsidiaries, other Indebtedness incurred in the ordinary course of business, and other Indebtedness permitted pursuant to Section 7.02.
(ig) the Since November 5, 2015, no Company Material Adverse Effect shall have occurred.
(h) The representations and warranties of each Loan Party and its Subsidiaries contained in Article V of the Credit this Agreement are and each other Loan Document, shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of such date (unless the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects as of such earlier date), .
(iii) no No Default or Event of Default has shall have occurred and is continuing under the Credit Agreement as of such datebe continuing, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantorwould result from, the MLP’s general partner, or consummation of the Transactions (including any Credit Extension to be made on the Closing Date and the application of their respective properties that could reasonably be expected to have a Material Adverse Effect;the proceeds thereof).
(gj) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the The Administrative Agent shall have received (on behalf i) any certificates representing the Equity Interests required to be pledged pursuant to the Security Agreement, together with an undated stock or similar power for each such certificate executed in blank by a duly authorized officer of the Exiting Lenderspledgor thereof and (ii) funds necessary any promissory note required to pay all principal, interest, fees and other charges owed be pledged to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(k) Each document (including any UCC (or similar) financing statements) required by the Collateral Documents or under Law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to perfect such Lien shall be in proper form for filing, registration or recordation.
(l) The Administrative Agent shall have received, at least 3 Business Days prior to the Closing Date, all documentation and other documents as may be reasonably information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act, to the extent requested by the Administrative Agent or any Lender at least 10 Business Days prior to the ArrangersClosing Date. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for For purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, any Loan Document to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting such Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide have received written notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingClosing Date specifying its objection thereto.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Warrior Met Coal, LLC)
Conditions of Effectiveness. This Fifth Amendment Restatement Agreement shall not be become effective until as of the first date upon which each of the following conditions precedent has been satisfied:set forth in this Section 5 shall be satisfied or waived in accordance with Section 9.01 of the Credit Agreement (such date, the “Restatement Effective Date”):
(a) the The Administrative Agent has shall have received a counterpart on or before the Restatement Effective Date the following, each dated such day (unless otherwise specified):
(i) Executed counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed Restatement Agreement by the Borrower, the MLPParent, the other Loan Partieseach Subsidiary Guarantor, the Administrative Agent, the Consenting Lenders constituting at least the Required Lenders under the Credit Agreement, each other Consenting Lender and each of the New Lenders;.
(bii) A Note executed by the Administrative Agent has received an amended Borrower in favor of each Consenting Lender and restated promissory note payable to each New Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant Note at least three Business Days prior to Section 2.09(athe Restatement Effective Date.
(iii) Certified copies of the resolutions of the Board of Directors of each Loan Party approving the amendment and restatement of the Credit Agreement in the amount as contemplated by this Restatement Agreement, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to 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;amendment and restatement.
(civ) the Administrative Agent has received (i) A copy of a certificate of the Secretary of State (or other similar official) of the jurisdiction of incorporation of each Loan Party, dated as reasonably near the date of the Fifth Amendment Restatement Effective Date and executed by an appropriate officerDate, which shall certifying (A) certify the resolutions or other action authorizing the executionas to a true, delivery correct and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as complete copy of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate (to the extent the Secretary of State in the applicable jurisdictions typically provides such a certification) and (3) such Loan Party is duly incorporated and in good standing (to the extent such concept exists in the applicable jurisdiction) or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
(v) (x) A certificate of the Secretary or Assistant Secretary of each Loan Party, countersigned on behalf of such Loan Party by another officer of such Loan Party, dated the Restatement Effective Date (the statements made in which certificate shall be true on and as of the Restatement Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in clause (iv) above, (B) a true, correct and complete copy of its the bylaws or operating, management or partnership agreement, of such Loan Party as in effect on the Restatement Effective Date and incumbency certificates, (iiC) a the good standing certificate for of each Loan Party from its jurisdiction of incorporation or organization as of a recent date(to the extent such concept exists in the applicable jurisdiction) (with the applicable good standing certificates attached thereto), and (iiiy) a certificate from the chief financial officer of the Borrower President or a Vice President of the Borrower, dated the Restatement Effective Date (the statements made in which certificate shall be true on and as of the Restatement Effective Date), certifying as to the satisfaction of the conditions set forth in Sections 5(e) and (f).
(vi) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Restatement Agreement and the MLP other documents to be delivered hereunder.
(A) A favorable opinion of White & Case LLP, counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securitiesand (B) to the extent not covered by clause (A) above, LLC a favorable opinion of local counsel from each jurisdiction in which any Loan Party is organized.
(b) The Collateral Agent shall have received (A) a standard flood hazard determination form ordered by the Collateral Agent evidencing whether each such Mortgaged Property (as defined in the applicable Mortgage) is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”) and RBC Capital Markets whether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program, (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, togetherB) for each Flood Hazard Property, the applicable Loan Party’s written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such Mortgaged Property is a Flood Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program, and (C) for each Flood Hazard Property, copies of the applicable Loan Party’s application for a flood insurance policy plus proof of premium payment, and a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent and naming the Collateral Agent as sole loss payee on behalf of the Secured Parties.
(c) The Administrative Agent shall have received (or received evidence of payment of) all amounts payable thereto or to any Consenting Lender, Non-Consenting Lender or Lead Arranger (as defined in the Amended Credit Agreement) (or, in the case of any Non-Consenting Lender and Lead Arranger, arrangements satisfactory to the relevant parties have been made with respect to receipt of such amounts) on or prior to the Restatement Effective Date pursuant to this Restatement Agreement or any other Loan Document (including any outstanding principal, interest and fees owing to any Non-Consenting Lender, any arrangement fee payable to any Lead Arranger in connection herewith and the accrued fees and expenses of counsel to the Administrative Agent to the extent required to be reimbursed pursuant to that certain Commitment Letter, dated as of November 7, 2012, by and among the Borrower, each Lead Arranger and Bank of America, N.A.).
(d) The Administrative Agent shall have received by wire transfer of immediately available funds, for the ratable benefit of each Consenting Lender and New Lender that has delivered an executed counterpart hereof to the Administrative Agent prior to 5:00 p.m. (New York City time), November 21, 2012 (the “ArrangersConsent Deadline”), an upfront fee in an amount equal to 0.125% of the aggregate amount of such Consenting Lender or New Lender’s Advances and unutilized Commitments, in each case, as of the Restatement Effective Date.
(e) certifying that, after giving pro forma effect to this Fifth Amendment, The representations and warranties of each of the MLPParent, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel Subsidiary Guarantors contained in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Restatement Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer Article IV of the Borrower certifying that (i) the representations and warranties contained in Article V of the Amended Credit Agreement and any other Loan Document are true and correct in all material respects on and as of such date (unless the Restatement Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects as of such earlier date); provided, (ii) no Default or Event of Default has occurred further, that any representation and warranty that is continuing under the Credit Agreement qualified as of such dateto “materiality”, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a “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; provided, (ivfurther, that solely for purposes of the representation and warranty set forth in the second sentence of Section 8(a) there is no litigation, investigation or proceeding known to and affecting of the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Security Agreement, and (v) no action, suit, investigation or proceeding is pending or, Schedule V to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partnerSecurity Agreement shall be deemed to be replaced with that attached as Schedule 2 hereto.
(f) No Default shall exist, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) would result from the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangerstransactions contemplated hereby. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for For purposes of determining compliance with the conditions specified in this Section 4above, each Consenting Lender (other than an Exiting Lender) that has signed this Fifth Amendment and each New Lender shall be deemed to have consented to, approved or accepted or to be satisfied with, with each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than such Persons unless an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 officer of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall promptly provide written have received notice from any such Person prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingRestatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment Agreement and the commitment of each Consenting Lender and New Lender, as applicable, to replace each Non-Consenting Lender pursuant to Sections 3.06(b) and 10.13 of the Existing Revolving Credit Agreement and Section 2 of this Amendment Agreement shall not be become effective until upon receipt by the date Administrative Agent of:
(i) executed counterparts of this Amendment Agreement by a Responsible Officer of each of the following conditions precedent has been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLPActavis, the other Loan Parties, and Ultimate Parent and a duly authorized officer of (w) the Administrative Agent, (x) each Consenting Lender, (y) each of the New Lenders and (z) the LendersL/C Issuer;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of Ultimate Parent certifying that, on and as of the Borrower certifying that date hereof, (iA) the representations and warranties contained in Article V of the Second Amended ACT Revolving 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), and (iiB) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, continuing;
(iii) since December 31a certificate signed by a Responsible Officer of the Borrower (A) certifying and attaching the resolutions adopted by the Borrower authorizing the execution and delivery of this Amendment Agreement and the performance of the Second Amended ACT Revolving Credit Agreement, 2015(B) certifying as to the incumbency and specimen signature of each Responsible Officer executing this Amendment Agreement, there has been no event (C) attaching a good standing certificate (or circumstance the local equivalent) and a certificate of incorporation evidencing that has the Borrower is validly existing and in good standing (or could reasonably be expected to have the local equivalent) in its jurisdiction of organization and (D) certifying and attaching a Material Adverse Effect, true and complete copy of the Organization Documents of the Borrower;
(iv) there a Subsidiary Guarantor Counterpart (as defined in the Second Amended ACT Revolving Credit Agreement), executed by a Responsible Officer of Actavis Funding SCS, a limited partnership (société en commandite simple) organized under the laws of the Grand Duchy of Luxembourg having its registered office at ▇▇▇, ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇, L-1855 Luxembourg, registered with the Luxembourg Registrar of Commerce and Companies under number B 187.310 with a share capital of $20,000 (“Actavis SCS”);
(v) a certificate signed by a Responsible Officer of Actavis SCS (A) certifying and attaching the resolutions adopted by Actavis SCS authorizing the execution, delivery and performance of the Loan Documents to which it is no litigationor is to be a party pursuant to the Second Amended ACT Revolving Credit Agreement, investigation (B) certifying as to the incumbency and specimen signature of each Responsible Officer executing the Loan Documents to which it is or proceeding known is to be a party, (C) attaching a good standing certificate (or the local equivalent) and affecting a certificate of incorporation (or the local equivalent) evidencing that Actavis SCS is validly existing and in good standing (or the local equivalent) in its jurisdiction of organization and (D) certifying and attaching a true and complete copy of the Organization Documents of Actavis SCS;
(vi) an executed legal opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special New York counsel for the Borrower, addressed to the Administrative Agent and each Lender under the Second Amended ACT Revolving Credit Agreement and dated the date hereof, substantially in the form attached as Exhibit J-1 to the Second Amended ACT Revolving Credit Agreement and (B) Loyens & Loeff Luxembourg S.à ▇.▇., special Luxembourg counsel for the Borrower or any affiliate for which and Actavis SCS, addressed to the Borrower is required to give notice Administrative Agent and each Lender under the Second Amended ACT Revolving Credit Agreement and dated the date hereof, substantially in the form attached as Exhibit J-3 to the Second Amended ACT Revolving Credit Agreement; and
(vii) confirmation that all fees due and payable pursuant to the Second Amended ACT Revolving Credit Agreement have been paid. Upon such effectiveness, (i) this Amendment Agreement shall be a binding agreement between the parties hereto and their permitted assigns under the Existing Revolving Credit Agreement, and (vii) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of each party hereto agrees that their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself commitments and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable consents to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4once delivered, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall are irrevocable and may not be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender)withdrawn. Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the The Administrative Agent shall promptly provide written notice to the Borrowernotify Ultimate Parent, the Lenders (including and the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth AmendmentAmendment Effective Date in writing, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Amendment Agreement (Actavis PLC)
Conditions of Effectiveness. This Fifth Amendment and Waiver --------------------------- shall not be become effective until the date each of the following conditions precedent has been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreementdate first above written when, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
only when (i) the Administrative Agent shall have received (on behalf counterparts of this Amendment and Waiver executed by the Borrower, the other Credit Parties and the Required Banks or, as to any of the Exiting Lenders) funds necessary to pay all principalBanks, interest, fees and other charges owed advice satisfactory to the Exiting Lenders under Administrative Agent that such Bank has executed this Amendment and Waiver and (ii) the Loan DocumentsAdministrative Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified), and in sufficient copies for each Bank:
(a) Certified copies of (i) the resolutions of the Board of Directors of (A) each Credit Party approving this Amendment and Waiver and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and Waiver.
(b) A certificate of the Secretary or an Assistant Secretary of each Credit Party certifying the names and true signatures such Credit Party authorized to sign this Amendment and Waiver.
(c) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) The representations and warranties contained in Section 4 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
(jii) No event has occurred and is continuing that constitutes a Default.
(d) Detailed consolidated financial projections for the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangersfiscal years ending December 31, 1999, December 31, 2000 and December 31, 2001. Without limiting the generality of This Amendment and Waiver is subject to the provisions of Article IX Section 15.10 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Section 1 of this Amendment shall not be become effective until the date each as of February 17, 1997, if and only if all of the following conditions precedent has been satisfiedare satisfied on or before February 18, 1997:
(a) the Administrative The Agent has shall have received a counterpart counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) duly executed by the Borrower, the MLP, Issuing Bank and each Lender and a counterpart of the other Loan Parties, Consent of Guarantor attached hereto duly executed by the Administrative Agent, and the Lenders;Guarantor.
(b) The Borrower shall have furnished to the Administrative Lenders, Issuing Bank and Agent has received an amended copies of a bank commitment letter and restated promissory note payable to each Lender highly confident letters that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) are substantially in conformity with the description of such letters set forth under the Credit Agreement heading "Modification of Takeout Commitment" in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Partyletter dated February 10, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party 1997 from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P., counsel of the Borrower to the Loan Parties and Lenders.
(iic) local counsel in The Agent shall have received on or before February 18, 1997 the following, each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agentdated such date (unless otherwise specified), in each case in form and substance acceptable satisfactory to the Administrative Agent Agent, the Issuing Bank and its counsel;the Majority Lenders (unless otherwise specified) and in sufficient copies for the Agent, Issuing Bank and each Lender:
(ei) all governmental and third party consents to the transactions contemplated herebyA certificate, the obtaining of which is a condition to the MLP’s, duly executed by the Borrower’s 's Chief Executive Officer or their affiliates’ funding obligations under the Credit AgreementChief Financial Officer, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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)after giving effect to Section 1 hereof, (ii) no Default or Event of Default has occurred and is continuing under (ii) on such date, after giving effect to Section 1 hereof, no event or circumstance has occurred that will cause the Credit Agreement occurrence of the Fifth Amendment Termination Date and (iii) the representations and warranties set forth in Section 2 hereof are true on and as of such date.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Amendment, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect each such Loan Document.
(iii) since December 31, 2015, there has been no event A certificate of the Secretary or circumstance that has or could reasonably be expected an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to have a Material Adverse Effect, sign this Amendment.
(iv) there is no litigationA legal opinion from Greenberg, investigation or proceeding known Traurig, Hoffman, Lipoff, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., counsel to the Borrower, as to this Amendment and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, as amended hereby, in form and (v) no action, suit, investigation or proceeding is pending or, substance satisfactory to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;Agent.
(gd) the The Borrower has shall have paid (i) fees to the ArrangersAgent, in immediately available funds for the Administrative Agent (on behalf rateable account of itself and the Lenders, a fee in the amount of 1.00% of the aggregate amount of the Advances and Letter of Credit Liability outstanding on the date hereof.
(e) and other fees and expenses due The Borrower shall have paid all amounts accrued and payable pursuant to any fee letters applicable to this Fifth Amendment between under Section 9.04 of the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses Credit Agreement to the extent invoiced prior to closing;
(h) the Borrower that request for such payment has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has been made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Physician Corporation of America /De/)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each of the following conditions precedent has been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Required Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 20152018, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(gd) the Borrower has paid (i) fees an amendment fee to the Arrangers, the Administrative Agent (on behalf for the benefit of itself and each Lender party hereto) in an aggregate amount equal to 0.05% of each such Lender’s Commitment as of the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable Eighth Amendment Effective Date (after giving effect to this Fifth Amendment between the Borrower and the Arrangers Amendment) and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced at least one (1) Business Day prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan DocumentsEighth Amendment Effective Date; and
(je) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent. The Administrative Agent or agrees that it will, upon the Arrangers. Without limiting the generality satisfaction of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified contained in this Section 43, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, Borrower and the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the date (the “Fourth Amendment Effective Date”) when, and only when, each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Partyshall have received, dated as of the Fifth Fourth Amendment Effective Date, an executed counterpart hereof from each of the Borrowers and the Required Lenders.
(b) The Administrative Agent shall have received, dated as of the Fourth Amendment Effective Date, an executed counterpart of the Consent, Reaffirmation, and Agreement of Guarantor from each Guarantor.
(c) The Administrative Agent shall have received, dated as of the Fourth Amendment Effective Date, an executed counterpart of the Amendment to Security Agreement, duly completed and executed by the Credit Parties.
(d) The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of each Credit Party executing any Credit Documents as of the Fourth Amendment Effective Date, dated the Fourth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.that the organizational documents of such Credit Party have not been amended, counsel to amended and restated, or otherwise modified since the Loan Parties Third Amendment Effective Date (and if such organizational documents have been amended, amended and restated, or otherwise modified, attaching copies thereof) and (ii) local counsel in each jurisdiction applicable that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the transactions contemplated by incumbency and genuineness of the signature of each officer of such Credit Party executing this Fifth Amendment Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above, as reasonably requested by applicable.
(e) The Borrowers shall have paid to the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated herebyimmediately available funds, the obtaining $25,000,000 amount required to be paid on or before April 30, 2010 pursuant to Section 2.6(a) of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;.
(f) The Borrower shall have paid to the Administrative Agent, in immediately available funds, no less than $65,000,000, which amount shall be applied by the Administrative Agent has received a certificate signed by a Responsible Officer of to non-permanently reduce the Borrower certifying that (i) 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;Revolving Loans.
(g) the Borrower has The Borrowers shall have paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and , for the Arrangers’ reasonable legal fees and expenses to pro-rata benefit of each Lender who approves this Amendment, a nonrefundable fee in the extent invoiced prior to closing;amount of $1,000,000, which fee shall be deemed fully earned as of the Fourth Amendment Effective Date.
(h) To the Borrower has extent invoiced at least one (i1) delivered an amendment Business Day prior to each applicable Mortgage to extend the maturity date described therein Fourth Amendment Effective Date, the Borrowers shall have paid all reasonable out-of-pocket costs and (ii) paid funds sufficient to pay any filing or recording tax or fee expenses of the Administrative Agent in connection with the filing preparation, negotiation, execution and delivery of such amendments to this Amendment (including, without limitation, the applicable Mortgages, or has made arrangements satisfactory to reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lenderrespect thereto). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until (the date each of “Amendment No. 1 Effective Date”) when the following conditions precedent has shall have been satisfied:satisfied (or waived by the New Term A Lenders in the case of Section 2(a) or by the Required Lenders in the case of Section 2(b)):
(a) In the Administrative Agent has received a counterpart case of all Sections of this Fifth Amendment (which may be by telecopy or other electronic transmissionthan Section 1(d) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;hereof:
(bi) the Administrative Agent has received an amended and restated promissory note payable to receives the following, each Lender that has previously requested a promissory noteof which shall be originals or facsimiles (or other electronic imaging means) unless otherwise specified, as applicableeach dated the Amendment No. 1 Effective Date (or, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount case of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate certificates of each Loan Partygovernmental officials, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Amendment No. 1 Effective Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative Agent:
(a) a counterpart of this Amendment signed by each of the Administrative Agent, the Borrower and each New Term A Lender;
(b) a certificate of the Borrower signed by a Responsible Officer of the Borrower in accordance with Section 2.14(b) of the Credit Agreement relating to the New Term A Commitments;
(c) copies (certified, to the extent applicable) of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches (other than for Franklin County, Ohio) or equivalent reports or searches, each of a recent date before the Amendment No. 1 Effective Date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor (other than a Louisiana entity) and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business;
(d) 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 Amendment, the Credit Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(e) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is in good standing in its jurisdiction of incorporation or formation, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(f) an opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& ▇▇▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentParties, in each case in form and substance acceptable addressed to the Administrative Agent and its counselthe New Term A Lenders, in form and substance reasonably satisfactory to the Administrative Agent (which shall cover New York law and the General Corporation Law, Limited Liability Company Act and Revised Uniform Limited Partnership Act of Delaware);
(eg) all governmental and third party consents an opinion of local counsel to the transactions contemplated herebyLoan Parties in Ohio, the obtaining of which is a condition addressed to the MLP’sAdministrative Agent and the New Term A Lenders, in form and substance reasonably satisfactory to the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effectAdministrative Agent;
(fh) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance since December 31, 2012 that has had or could be reasonably be expected to have a Material Adverse Effecthave, (iv) there is no litigationeither individually or in the aggregate, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees a certificate attesting to the Arrangers, the Administrative Agent (on behalf Solvency of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and its Restricted Subsidiaries on a consolidated basis before and after giving effect to the Arrangers and (ii) the Administrative Agent’s transactions contemplated by this Amendment and the Arrangers’ reasonable legal fees incurrence of Indebtedness related thereto, from the Borrower’s chief financial officer in form and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements substance reasonably satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan DocumentsAgent; and
(j) such other certificates (but excluding insurance certificates) or documents as the Administrative Agent has received such other documents as reasonably may be reasonably required by require.
(b) In the case of Section 1(d) of this Amendment, immediately after the effectiveness of Section 1(c) of this Amendment and when the Administrative Agent receives a counterpart of this Amendment signed by each of the Administrative Agent and Borrower and consents in the form of Exhibit A hereto (the “Consent”) or otherwise acceptable to the ArrangersAdministrative Agent signed by the Required Lenders (after giving effect to Section 1(c)). Without limiting the generality of the provisions of Article IX the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4▇▇▇▇▇▇▇ ▇, each Lender (other than an Exiting Lender) ▇▇▇▇ ▇▇▇▇▇▇ that has signed this Fifth Amendment (or the Consent that is part hereof) shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Amendment No. 1 Effective Date specifying its objection thereto and the Required Lenders (other than an Exiting Lender). Upon the satisfaction (or waiver as defined in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice signatures hereto shall be conclusive and bindingbinding on all Lenders.
Appears in 1 contract
Sources: Credit Agreement (Wendy's Co)
Conditions of Effectiveness. This Fifth The effectiveness of this Amendment shall not be effective until (including the date each amendments contained in Section 1 and agreements contained in Section 2) are subject to the satisfaction (or waiver) of the following conditions precedent has been satisfied:(the date of satisfaction of such conditions being referred to herein as the “Third Amendment Effective Date”):
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) shall have been duly executed by the Borrower, the MLPHoldings, the Subsidiary Guarantors, the Replacement Lender and the Administrative Agent (which may include a copy transmitted by facsimile or other Loan Partieselectronic method), and delivered to the Administrative Agent, and the LendersInitial Term Lenders under the Credit Agreement consisting of Initial Term Lenders holding more than 50% of the aggregate outstanding principal amount of the Initial Term Loans immediately prior to the Third Amendment Effective Date;
(b) the Administrative Agent has shall have received an amended fully executed and restated promissory note payable to each delivered Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) Consents from Continuing Lenders and the Replacement Lender representing 100% of the Credit Agreement in the aggregate outstanding principal 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 noteInitial Term Loans;
(c) the Administrative Agent has shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in paragraphs (e) and (f) of this Section 3;
(d) the Administrative Agent shall have received (i) a certificate of each Loan Party, dated as of the Fifth Third Amendment Effective Date and executed by an appropriate officera secretary, assistant secretary or other Responsible Officer thereof, which shall (A) certify the resolutions or other action authorizing the execution, delivery that (x) either (i) attached thereto is a true and performance complete copy of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation incorporation, formation or organization or equivalent constitutional documents of each such Loan Party certified by the relevant authority of the its jurisdiction of organization and that such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended, repealed, modified or restated (except as attached thereto) since the date reflected thereon or (ii) the certificate or articles of incorporation, formation or organization of such Loan Party delivered on the Closing Date or the date such Loan Party became a Loan Guarantor, as applicable, to the Administrative Agent have not been amended, repealed, modified or restated and are in full force and effect, (y) either (i) attached thereto is a true and correct copy of its bylaws the by-laws or operating, management management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Third Amendment Effective Date and such by-laws or operating, management, partnership agreementor similar agreement are in full force and effect or (ii) the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto delivered on the Closing Date or the date such Loan Party became a Loan Guarantor, as applicable, have not been amended, repealed, modified or restated and are in full force and effect and (z) attached thereto is a true and complete copy of the resolutions 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 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 incumbency certificates(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign this Amendment and (ii) a good standing (or equivalent) certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate date for such Loan Party from the chief financial officer relevant authority of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions its jurisdiction of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counselorganization;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to both before and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, immediately after giving effect to the knowledge transactions contemplated hereby;
(f) the representations and warranties of such officer, threatened the Loan Parties set forth in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any Section 4 of their respective properties that could reasonably be expected to have a Material Adverse Effectthis Amendment are true and correct;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other all fees and expenses due and payable required to be paid hereunder or pursuant to any fee letters applicable to this Fifth Amendment between that certain engagement letter dated as of August 1, 2017 (the “Engagement Letter”), by and among the Borrower and the Repricing Arrangers (as defined below), and (ii) any fee letter entered into by the Administrative Agent’s Borrower and any party thereto shall have been paid in full in cash or will be paid in full in cash on the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closingThird Amendment Effective Date;
(h) the Borrower has (i) Replacement Lender shall have executed and delivered an amendment to each applicable Mortgage to extend the maturity date described therein Master Assignment contemplated by Section 2 above and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments all conditions to the applicable Mortgages, or has made arrangements satisfactory to consummation of the Administrative Agent assignments in accordance with Section 2 above shall have been satisfied and the Arrangers for payment of such amounts;assignments shall have been consummated; and
(i) the Administrative Agent Borrower shall have received (on behalf have, substantially concurrently with the effectiveness of the Exiting Lenders) funds necessary this Amendment, paid to pay each Non-Consenting Lender, all principal, accrued interest, fees and other charges owed amounts payable to such Non-Consenting Lender under any Loan Document with respect to the Exiting Lenders Initial Term Loans assigned by such Non-Consenting Lender under the Loan Documents; and
(jSection 2(c) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender above (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed principal and all other amounts paid to have consented tosuch Non-Consenting Lender under Section 2 above), approved or accepted or be satisfied withif any, each document or other matter required then due and owing to such Non-Consenting Lender under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, Agreement and the other Loan Documents (immediately prior to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding).
Appears in 1 contract
Sources: First Lien Credit Agreement (ATI Physical Therapy, Inc.)
Conditions of Effectiveness. This Amendment and the obligation of each Fifth Amendment Incremental Revolving Lender to provide its Fifth Amendment Incremental Revolving Commitment shall not be become effective until on the date each of (such date, the “Fifth Amendment Effective Date”) on which the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has (or its counsel) shall have received from each Fifth Amendment Incremental Revolving Lender, each Issuing Bank, Holdings, each Borrower, each other U.S. Loan Party, each other Swiss Loan Party and each other Loan Party organized under the laws of Luxembourg (each, a “Luxembourg Loan Party”) either (x) a counterpart of this Fifth Amendment signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent (which may be include delivery of a signed signature page of this Amendment by telecopy facsimile or other means of electronic transmissiontransmission (e.g., “pdf”)) executed that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received a copy of (i) each organizational or constitutional document of each U.S. Loan Party, each Swiss Loan Party and each Luxembourg Loan Party certified, to the extent applicable, as of a recent date by the Borrowerapplicable Governmental Authority or as of the Fifth Amendment Effective Date by a director or an authorized representative of such Loan Party (where customary in any applicable jurisdiction), which shall, for the MLPavoidance of doubt, include in the other case of a Swiss Loan Party a copy of (x) up-to-date and certified articles of association (Statuten), (y) an up-to-date and certified excerpt of the competent commercial register and (z) an electronic copy of the register of beneficial owners (Verzeichnis der wirtschaftlich Berechtigten) and an electronic copy of the quota register (Anteilbuch), in each case, relating to such Swiss Loan Party; (ii) signature and incumbency certificates (where customary in any applicable jurisdiction) of the responsible officers or authorized representatives of each Loan Party executing this Amendment, (iii) copies of resolutions (or extracts of resolutions) of the board of directors or managers, shareholders, partners, and/or similar governing bodies, as applicable, of each Loan Party executing this Amendment approving and authorizing the execution, delivery and performance of this Amendment and the Amended Credit Agreement, certified as of the Fifth Amendment Effective Date by a secretary, an assistant secretary, a responsible officer or an authorized representative of such Loan Party as being in full force and effect without modification or amendment and (iv) a good standing certificate (to the extent such concept, or an analogous concept, exists) from the applicable Governmental Authority of the jurisdiction of incorporation, organization or formation of each Loan Party executing this Amendment.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders) of (i) ▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties, (ii) CMS Luxembourg, Luxembourg counsel for the Loan Parties, (iii) Ogier, Luxembourg counsel to the Administrative Agent and (iv) ▇▇▇▇▇▇▇▇▇ ▇▇, Swiss counsel to the Administrative Agent, and the Lenders;
in each case (bA) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;.
(d) the The Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.and each Fifth Amendment Incremental Revolving Lender shall have received, counsel at least three Business Days prior to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment Effective Date, all documentation and as other information about the Borrowers and the Guarantors that shall have been reasonably requested by the Administrative Agent, such Person in each case in form and substance acceptable writing at least 10 Business Days prior to the Administrative Agent Fifth Amendment Effective Date and that such Person reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act including, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower (provided that, upon the execution and delivery by such Lender of its counsel;signature page to this Agreement, the conditions set forth in this clause (d) shall be deemed to be satisfied).
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the The representations and warranties contained of each Loan Party set forth in Article V of Section 4 hereof and in 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 Loan Documents shall be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality or Material Adverse Effect, in all respects) on and as of the Fifth Amendment Effective Date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date).
(f) The Lenders shall have received a certificate from a Financial Officer of Holdings, (ii) no Default or Event substantially in the form of Default has occurred and is continuing under Exhibit K to the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Amended Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, certifying as to the knowledge solvency of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against Holdings and its Restricted Subsidiaries as of the Borrower, any Guarantor, Fifth Amendment Effective Date on a consolidated basis after giving effect to the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;transactions contemplated hereby.
(g) No Event of Default of the Borrower has paid type set forth in Section 7.01(a), (b), (h) or (i) fees to shall have occurred and be continuing or shall result from the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to transactions contemplated by this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;Amendment.
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the The Administrative Agent shall have received a certificate from a Financial Officer of Holdings, dated the Fifth Amendment Effective Date, confirming compliance with the condition set forth in Sections 5(e) and (g).
(i) The Administrative Agent shall have received all fees payable thereto on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed or prior to the Exiting Lenders under Fifth Amendment Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Fifth Amendment Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Loan Documents; andParties hereunder or under any other Loan Document on or prior to the Fifth Amendment Effective Date.
(j) The Administrative Agent shall have received the results of a recent UCC, tax and judgment lien search in each relevant U.S. jurisdiction with respect to each of the Loan Parties as the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingrequest.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the applicable signing Loan Party, each dated as of the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent has received a counterpart Agent:
(i) executed counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) Agreement executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, each Lender and the Lenderseach Loan Party;
(bii) each Note executed by the Administrative Agent has received an amended and restated promissory note payable to Borrowers in favor of 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 noteNote or Notes;
(ciii) the Administrative Agent has received [Reserved];
(iiv) [Reserved];
(v) [Reserved];
(vi) [Reserved];
(vii) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officera secretary, assistant secretary or other senior officer (as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its shareholders, partners, managers, members, board of directors, board of managers or other action governing body authorizing the execution, delivery and performance of this Fifth Amendment the Loan Documents to which it is a party and, in the case of the Borrowers, the borrowings hereunder, and (B) certify that certain documents previously delivered to the Administrative Agent such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect as effect, (B) identify by name and title and bear the signatures of the Fifth Amendment officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a party on the Effective Date or contain appropriate attachments, including and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent constitutional documents thereof) of each such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws by-laws or operating, management management, partnership or partnership agreementsimilar agreement and (y) that such documents or agreements have not been amended, restated, amended and incumbency certificatesrestated, supplemented or otherwise modified (except as otherwise attached to such certificate and certified therein as being the only amendments, restatements, amendments and restatements, supplements or modifications thereto as of such date) and (ii) a good standing (or equivalent) certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date for such Loan Party from (A) its jurisdiction of organization and (iiiB) in each jurisdiction in which it is qualified to engage in business where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except, in the case of this clause (B), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a certificate from the chief financial of a duly authorized officer of each Loan Party either stating that all consents, licenses and approvals required in connection with the Borrower execution, delivery and performance by such Loan Party and the MLP validity against such Loan Party of the Loan Documents to which it is a party have been received and are in full force and effect or stating that no such consents, licenses or approvals are so required in connection with the consummation by such Loan Party of the Transactions;
(ix) a certificate signed by a Responsible Officer of Holdings certifying that the conditions set forth in Section 4.01(f), (h) and (i) have been satisfied as of such date;
(x) a solvency certificate, substantially in the form and substance reasonably satisfactory of Exhibit L from a Responsible Officer of Holdings (or, at the option of Holdings, a customary third-party opinion as to the Administrative Agentsolvency of Holdings and its Subsidiaries, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent);
(dxi) a Borrowing Base Certificate covering the Borrowing Base as of October 31, 2021, with customary supporting documentation;
(xii) [Reserved]; and
(xiii) the Administrative Agent has received opinions executed opinion of (i) Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.& ▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the Lenders and the L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request.
(b) (i) Any fees required to be paid on or before the Effective Date to the Administrative Agent, any Arranger or the Lenders pursuant to the Fee Letter shall have been paid and (ii) local counsel in each jurisdiction applicable any costs and expenses required to be paid on or before the transactions contemplated by this Fifth Amendment and as reasonably requested by Effective Date to the Administrative Agent, in each case in form and substance acceptable any Arranger or the Lenders to the Administrative Agent and its counsel;extent invoices have been received by Holdings at least two Business Days prior to the Effective Date (or such later date as reasonably agreed by Holdings) shall have been paid.
(c) [Reserved].
(d) [Reserved].
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;[Reserved].
(f) On the Administrative Agent has received a certificate signed by a Responsible Officer Effective Date, neither Holdings nor any of its Subsidiaries shall have any material Indebtedness for borrowed money (other than any Loans and Letters of Credit outstanding on the Borrower certifying that Effective Date), purchase money Indebtedness, Capital Lease Obligations, working capital facilities for Foreign Subsidiaries, other Indebtedness incurred in the ordinary course of business, and other Indebtedness permitted pursuant to Section 7.02.
(ig) the [Reserved].
(h) The representations and warranties of each Loan Party and its Subsidiaries contained in Article V of the Credit this Agreement are and each other Loan Document, shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of such date (unless the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects as of such earlier date), .
(iii) no No Default or Event of Default has shall have occurred and is continuing under the Credit Agreement as of such datebe continuing, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantorwould result from, the MLP’s general partner, or consummation of the Transactions (including any Credit Extension to be made on the Effective Date and the application of their respective properties that could reasonably be expected to have a Material Adverse Effect;the proceeds thereof).
(gj) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;[Reserved].
(hk) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;[Reserved].
(il) the The Administrative Agent shall have received (on behalf of received, at least 3 Business Days prior to the Exiting Lenders) funds necessary to pay Effective Date, all principal, interest, fees documentation and other charges owed information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act, to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required extent requested by the Administrative Agent or any Lender at least 10 Business Days prior to the ArrangersEffective Date.
(m) No later than three Business Days prior to the Effective Date, the Administrative Agent and Lenders shall have received a Beneficial Ownership Certification in relation to each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for For purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, any Loan Document to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting such Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide have received written notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingEffective Date specifying its objection thereto.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Warrior Met Coal, Inc.)
Conditions of Effectiveness. This Fifth Second Amendment shall not be effective until on the date Agent delivers to Borrower written notice that each of the following conditions precedent has been satisfied:occurred or exists ("AMENDMENT DATE"):
(a) the Administrative Agent has received a counterpart The effectiveness of this Fifth Second Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative shall not contravene any Law applicable to Agent, and the Lenders;Issuing Bank, Co-Agent, Canadian Agent, Canadian Issuing Bank or any Lender.
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory noteNo Material Adverse Change, as applicabledetermined by Agent, 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;shall have occurred and be continuing since October 31, 1997.
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no No Default or Event of Default has occurred shall exist.
(d) Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian Issuing Bank, each Lender and is continuing under each Obligor shall have executed and received counterparts of this Second Amendment.
(e) Agent shall have received a complete and correct copy of the Credit Agreement as Field Stock Agreement.
(f) Agent shall have received, contemporaneously with Borrower's execution of such datethis Second Amendment, payment of all fees (iii) since December 31including attorneys' fees incurred by Agent prior to execution of this Second Amendment in the preparation, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to negotiation and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge execution of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;this Second Amendment).
(g) the Borrower has paid Agent shall have received, in form and substance satisfactory to Agent and its counsel, (i) fees releases of each security interest and other Lien granted by CAFS to secure performance under the CAFS Credit Agreement and any related agreement (together with appropriate UCC partial releases and similar instruments), to the Arrangersextent such security interests and Liens (A) grant or perfect a security interest or Lien in Consumer Notes (as defined in the CAFS Credit Agreement) which do not qualify as Eligible Consumer Notes (as defined in the CAFS Credit Agreement) solely due to their non-conformity with the then- applicable requirements related to Warehousing Period (as defined in the CAFS Credit Agreement), and (B) the Administrative Agent (on behalf perfection of itself and priority of such security interests and Liens are determined by a means other than possession by the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers secured party, and (ii) evidence of the Administrative Agent’s grant by CAFS to Parent and perfection of a first priority security interest in the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;Consumer Notes described in CLAUSE (i).
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein Agent shall have received, in form and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements substance satisfactory to the Administrative Agent and the Arrangers for payment Agent, a guaranty of such amounts;Bois ▇▇▇▇▇▇, Ltee.
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary received, in form and substance satisfactory to pay all principalAgent and its counsel, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents approvals, documents, certificates, and instruments as Agent shall require. Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian Issuing Bank and each Lender may be reasonably required by conclusively rely on the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX certificates delivered pursuant to SECTION 3.01 of the Credit Agreement, for purposes of determining compliance with the conditions specified Agreement until Agent receives notice in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice writing to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingcontrary.
Appears in 1 contract
Sources: Second Restated Credit Agreement (Cameron Ashley Building Products Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until Subject to Section 6.19, the date each effectiveness of this Agreement is subject to satisfaction or waiver by Administrative Agent of the following conditions precedent has been satisfiedimmediately prior to or concurrently with the making of any Loans or Letter of Credit Extensions hereunder:
(a) the Unless waived by Administrative Agent has received a counterpart and Lenders, Administrative Agent’s receipt of this Fifth Amendment the following, each of which shall be originals or facsimiles, including pdfs or similar electronic transmission (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by a Senior Officer of Borrower or the Borrowerapplicable Guarantor (including the Target Company), the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicabledated on, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount case of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Partythird-party certificates, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions on or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent datedate before, the Closing Date and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower each Lender and their subsidiaries legal counsel:
(on a consolidated basisi) are solventexecuted counterparts of the Loan Documents;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel executed original counterparts of each Subordination Agreement, each in each jurisdiction applicable form and substance satisfactory to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case ;
(iii) modifications to Subordinated Debt in form and substance acceptable to Administrative Agent in its sole discretion, including necessary consents to consummate the transactions contemplated by this Agreement;
(iv) amendments to the existing UCC financing statements of the Subordinated Praesidian Agent as described in the Praesidian Subordination Agreement;
(v) amendments to the Organization Documents of the Loan Parties in form and content reasonably acceptable to Administrative Agent;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Senior Officers of Borrower and each Guarantor, as Administrative Agent may require to establish the identities of and verify the authority and capacity of each Senior Officer thereof authorized to act as a Senior Officer thereof;
(vii) such evidence as Administrative Agent and its counselany Lender may reasonably require to verify that Borrower and each Guarantor is duly organized or formed, validly existing, in good standing and qualified to engage in business in Borrower’s or such Guarantor’s jurisdiction of organization and in each foreign jurisdiction in which Borrower or such Guarantor is required to be qualified, including copies of Borrower’s and each Guarantor’s Organization Documents certified by the corporate Secretary, certificates of good standing and/or qualification to engage in business and, if requested by Administrative Agent, tax clearance certificates;
(eviii) all governmental and third party consents to a Perfection Certificate signed by a Senior Officer of the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effectLoan Parties;
(fix) the Administrative Agent has received a certificate signed by a Responsible Senior Officer of the Borrower certifying that (i1) the representations and warranties contained made by each Loan Party in Article V of the Credit Agreement Loan Documents are true and correct in all material respects on and as of such date the Closing Date (unless except to the extent such representations and warranties specifically refer to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects as of such earlier date), (ii2) each Loan Party is in compliance with all the terms and provisions of the Loan Documents to which it is a party, and no Default or Event of Default has shall have occurred and is continuing under the Credit Agreement as of such datebe continuing, (iii3) since December 31, 2015, there has been no event or circumstance that which has or could reasonably be expected to have has had a Material Adverse Effect; and (4) a pro forma calculation of the Total Leverage Ratio of less than 4.50x, (iv) there is no litigationSenior Leverage Ratio of less than 3.00x, investigation or proceeding known to and affecting Adjusted EBITDA of the Borrower or any affiliate for which the Borrower is required to give notice under the Credit AgreementParent on a Consolidated Basis of not less than $15,630,000, and Adjusted EBITDA of Borrower on a Consolidated Basis of not less than $19,130,000 (vin each case giving effect to the Target Transaction and the funding of the Term Loans on the Closing Date);
(x) an opinion of K▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇ LLP, M▇▇▇▇▇ ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, K▇▇▇▇▇▇ M▇▇▇▇▇▇▇ & K▇▇▇▇▇▇ PLL and Bilzin S▇▇▇▇▇▇ ▇▇▇▇▇ Price & A▇▇▇▇▇▇ LLP, each legal counsels to the Loan Parties, as to matters Administrative Agent may reasonably request, dated as of the Closing Date and otherwise in form and substance satisfactory to Administrative Agent;
(xi) Loan Parties shall have received all Governmental Authorizations and all Consents, in each case that are necessary in connection with the entry into, consummation and performance of the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Administrative Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and no action, suitrequest for stay, investigation petition for review or proceeding is pending orrehearing, reconsideration, or appeal with respect to any of the knowledge of such officerforegoing shall be pending, threatened in and the time for any court or before any arbitrator or applicable Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to take action to set aside its consent on its own motion shall have a Material Adverse Effectexpired;
(gxii) Administrative Agent and the Lenders shall have received all documentation and other information required by such institution or its bank regulatory authorities under Sanctions, Anti-Terrorism Laws, Anti-Corruption Laws and other Laws, including the USA PATRIOT Act;
(xiii) evidence, reasonably satisfactory to Administrative Agent, that Borrower has paid completed, or concurrently with the making of the initial extension of credit will complete, the Target Transaction in accordance with the terms of the Target Acquisition Documents (iwithout any material amendment thereto or waiver thereunder unless consented to by Administrative Agent). Administrative Agent shall have received a copy of the Target Acquisition Agreement and all supplements, amendments, installments, documents and agreements related thereto, certified by a Senior Officer, dated the Closing Date, as correct and complete;
(xiv) fees evidence reasonably satisfactory to Administrative Agent that the sum of the aggregate purchase price under the Target Transaction is not in excess of $28,000,000;
(xv) evidence that at least $5,000,000 of the purchase price of the Target Company under the Target Acquisition Agreement has been or is being satisfied by the issuance of Equity Securities by Parent to the Arrangersseller of the Target Company concurrent with the consummation of the Acquisition of the Target Company;
(xvi) receipt of certificates of insurance required to be maintained under Section 6.09, the from insurance carriers acceptable to Administrative Agent, which certificates of insurance are in such forms and evidence such amounts of insurance coverage and deductibles acceptable to Administrative Agent (on behalf pursuant to insurance policies with additional insured and lender loss payable clauses in favor of itself Administrative Agent and the Lenders;
(xvii) receipt of a copy of the representations and other fees warranty insurance in favor of Borrower, from an insurance carrier acceptable to Administrative Agent, which policy of insurance is in such forms and expenses due evidences such amounts of insurance coverage and payable pursuant deductibles acceptable to any fee letters applicable Administrative Agent;
(xviii) the Target Quality of Earnings Report, in form and substance reasonably acceptable to this Fifth Amendment between the Borrower Administrative Agent and the Arrangers Lenders in all respects;
(xix) confirmation of the satisfactory completion of each Lender’s due diligence, including satisfactory completion by Administrative Agent of results (satisfactory in form and substance to Administrative Agent and Requisite Lenders) of all due diligence items requested and reviewed in connection with the Target Transaction and the Target Acquisition Agreement and related documents; and
(iixx) such other assurances, certificates, documents, consents or opinions as Administrative Agent reasonably may require.
(b) All fees (including fees required to be paid on or before the Closing Date as specified in the Commitment Letter) shall have been paid.
(c) Unless waived by Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses , Borrower shall have paid all Attorney Costs of Administrative Agent to the extent invoiced prior to closing;or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and Administrative Agent).
(hd) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) Each of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) 4.01 and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingSection 4.02 have been satisfied.
Appears in 1 contract
Sources: Credit Agreement (Fusion Telecommunications International Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of this Agreement and the date obligation of each L/C Issuer and each Lender to make any Credit Extensions hereunder on the Closing Date is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or pdf copies (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) Responsible Officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each signing Loan Party, each dated as the Closing Date (or, in the case of the Fifth Amendment Effective Date and executed by an appropriate officercertificates of governmental officials, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Closing Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement and the Guaranty, ▇▇▇▇▇ Fargo Securitiessufficient in number for distribution to the Administrative Agent, LLC each Lender and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventBorrowers;
(dii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent has received opinions may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iiv) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrowers and the Trust is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(v) a favorable opinion of counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentParties, in each case in form and substance acceptable addressed to the Administrative Agent and its counseleach Lender, as matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(evi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all governmental consents, licenses and third party consents approvals required by any requirements of Applicable Law or any Governmental Authority in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to the transactions contemplated hereby, the obtaining of which it is a condition to the MLP’sparty, the Borrower’s or their affiliates’ funding obligations under the Credit Agreementand such consents, have been obtained licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(fvii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that (i) the representations and warranties of the Borrowers and each other Loan Party contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished under or in connection herewith or therewith, are true and correct in all material respects (or, in the case of Section 5.14(b) or any representation and warranty that is qualified by materiality, in all respects) on and as of such the date (unless of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier datedate or period, in which case such representations and warranties they shall be have been true and correct in all material respects (or, in the case of any representation and warranty that is qualified by materiality, in all respects) as of such earlier datedate or for the respective period, as applicable, (B) that no Default exists, or would result from the consummation of this Agreement and the other Loan Documents and the transactions contemplated to occur thereby on the Closing Date (including, without limitation, any proposed Credit Extension or from the application of the proceeds thereof), (iiC) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, Effect and (ivD) there is no litigation, investigation or proceeding known to and affecting a calculation of the Borrower or any affiliate Consolidated Leverage Ratio as of the last day of the fiscal quarter for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, financial statements have been publicly filed prior to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse EffectClosing Date;
(gviii) a duly completed Compliance Certificate as of the last day of the fiscal period of the Company ended on May 31, 2025, signed by a Responsible Officer of the Company;
(ix) the Borrower has paid Audited Financial Statements and the unaudited financial statements of the Consolidated Group referred to in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer or the Required Lenders may reasonably require.
(i) fees Upon the reasonable request of any Lender made at least ten (10) days prior to the ArrangersClosing Date, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the Closing Date and (ii) at least five (5) days prior to the Closing Date, if any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Company shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees required to be paid to the Administrative Agent or any Lender in connection with this Agreement or the Fee Letter on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Company shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant directly to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) such counsel if requested by the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses ) to the extent invoiced prior to closing;
(h) or on the Borrower has (i) delivered an amendment date that is three Business Days prior to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing Closing Date, plus such additional amounts of such amendments fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the applicable Mortgages, or has made arrangements satisfactory to closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersAgent). Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (J.P. Morgan Real Estate Income Trust, Inc.)
Conditions of Effectiveness. This Fifth effectiveness of this Amendment shall not be effective until is subject to the date each satisfaction of the following conditions precedent has been satisfied:precedent.
(a) the The Administrative Agent has shall have received a counterpart each of the following:
(i) counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, each L/C Issuer and the Lenderseach Lender with a Commitment shown on Schedule 2.01 attached hereto;
(bii) a Note executed by the Administrative Agent has received an amended and restated promissory note payable to Borrower in favor of each New 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 noteNote;
(c) the Administrative Agent has received (iiii) a certificate of each Loan Party, dated as a Responsible Officer of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall Borrower (A) certify certifying as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Amendment, (B) certifying that attached thereto is a true, correct and complete copy of the Organization 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 (C) attaching resolutions adopted by the board of directors (or other action governing body) of the Borrower authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Fifth Amendment Amendment;
(iv) a certificate evidencing the existence and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as good standing of the Fifth Amendment Effective Date or contain appropriate attachmentsBorrower, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization issued as of a recent date, and date by the applicable Governmental Authority of its jurisdiction of organization;
(iiiv) a certificate from the chief financial officer favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, covering such matters concerning the Borrower and this Amendment as the MLP (Arrangers may reasonably request, in form and substance reasonably satisfactory to the Arrangers, such opinion to be addressed to the Administrative AgentAgent and each Lender;
(vi) (A) quarterly financial statements and compliance certificate as required by the Existing Credit Agreement for the fiscal quarter ended September 30, ▇▇▇▇▇ Fargo Securities2014, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo SecuritiesB) pro forma consolidated financial statements for the Borrower and its Subsidiaries for the nine-month period ended September 30, LLC and RBC Capital Markets, together, 2014 (the “ArrangersPro Forma Financial Statements”)) certifying that, after consisting of a consolidated statement of earnings and a balance sheet, in each case giving pro forma effect to this Fifth Amendmentthe Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of earnings), and in each case certified by a Responsible Officer of the MLPBorrower; and
(vii) A copy of the fully executed Sale Agreement, together with all exhibits and schedules thereto and other material agreements executed in connection with the QEP Field Services Sale, together with any amendments thereto.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions validity against the Borrower of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, Agreement and other Loan Documents shall have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by , and a Responsible Officer of the Borrower certifying shall certify to such effect or shall certify that no such consents, license and approvals are required.
(c) (i) The QEP Field Services Sale shall have been, or substantially concurrently with the representations and warranties contained in Article V satisfaction of the Credit Agreement are true and correct other conditions precedent to the Fourth Amendment Effective Date, shall be, consummated on the Fourth Amendment Effective Date in accordance in all material respects on with the terms of the Sale Agreement, 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), (ii) no Default provision of the Sale Agreement, in the form of the Sale Agreement filed with the SEC on October 19, 2014, shall have been waived, amended, supplemented or Event of Default has occurred otherwise modified, and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event consent or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting request by the Borrower or any affiliate for of its Subsidiaries shall have been provided thereunder, in each case in a manner which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, materially adverse to the knowledge interests of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and Lenders without the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangerswritten consent. Without limiting the generality foregoing, it is agreed that a reduction in the sales price of more than 25% of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment sales price shall be deemed “materially adverse to the interests of the Lenders.”
(d) The Borrower shall have consented to, approved repaid (or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance substantially concurrently with the requirements satisfaction of the other conditions precedent to the Fourth Amendment Effective Date, shall repay) on the Fourth Amendment Effective Date all Loans and other amounts owed under the Term Loan Agreement.
(e) The Borrower shall have terminated all lender and letter of credit issuer commitments under the QEPM Credit Agreement and shall have repaid (or substantially concurrently with the satisfaction of the other conditions precedent to the Fourth Amendment Effective Date shall repay) on the Fourth Amendment Effective Date all loans and other amounts owed under the QEPM Credit Agreement. As used herein, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of “QEPM Credit Agreement” means the Credit Agreement) Agreement dated as of the conditions set forth in this Section 4August 14, the Administrative Agent shall promptly provide written notice to the 2013 among QEP Midstream Partners Operating, LLC, as Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth AmendmentQEP Midstream Partners, LP, as parent guarantor, ▇▇▇▇▇ Fargo Bank, N.A., as Administrative Agent, and such notice shall be conclusive the lenders and bindingother parties thereto, as amended.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment Agreement shall not be become effective until on and as of the first date each of on which the following conditions precedent has have been satisfied:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or telecopies (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by a Responsible Officer, secretary or assistant secretary of the Borrowersigning Loan Party, each dated the MLPClosing Date (or, in the other Loan Partiescase of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Arrangers and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the LendersCompany;
(bii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers, secretaries or assistant secretaries of each Loan Party as the Administrative Agent has received an amended may require evidencing the identity, authority and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, Documents to which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment such Loan Party is a party and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as a copy of a Certificate of the Fifth Amendment Effective Date Secretary of State (or contain appropriate attachments, including comparable office) of the certificate or articles jurisdiction 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 certifying (1) as to a true and correct copy of its bylaws or operating, management or partnership agreement, the charter of such Loan Party and incumbency certificateseach amendment thereto on file in such Secretary’s office, (ii2) a that such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office and (3) that such Loan Party is validly existing, in good standing certificate for and qualified to engage in business in such jurisdiction;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party from its jurisdiction of incorporation is duly organized or organization as of a recent dateformed, and (iii) a certificate from the chief financial officer of the Borrower that each Loan Party is validly existing, in good standing and the MLP (qualified to engage in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel business in each jurisdiction applicable where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable extent that failure to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or do so could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could not reasonably be expected to have a Material Adverse Effect;
(gv) the Borrower has paid favorable opinions of (i) fees ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, special counsel to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers Loan Parties and (ii) ▇▇▇▇▇▇ Attorneys Ltd., Finnish counsel to the Finnish Borrower, in each case, addressed to the Administrative Agent and each Lender, as to the matters and concerning the Loan Parties and the Loan Documents, in form and substance reasonably acceptable to the Administrative Agent’s ;
(vi) a certificate of a Responsible Officer, secretary or assistant secretary of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the Arrangers’ validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Company, the statements in which shall be true certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since January 2, 2011 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Ratings; and
(viii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens, if any, securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released.
(b) Any fees required to be paid to any Agent or Lender on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all reasonable legal fees fees, charges and expenses disbursements of counsel to the Administrative Agent to the extent invoiced prior to closing;or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(hd) The Borrowers shall have provided the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein documentation and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principalPatriot Act, interest, fees and other charges owed at least five business days prior to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersClosing Date. Without limiting the generality of the provisions of Article IX of the Credit AgreementSection 9.04, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Perkinelmer Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of this Agreement is subject to the date each satisfaction of the following conditions precedent has been satisfied:(the date of such effectiveness, the “Restatement Date”):
(a) the Administrative Agent has Each Purchaser shall have received a counterpart original counterparts or, if satisfactory to such Purchaser, certified or other copies of this Fifth Amendment Agreement and all of the following, each duly executed and delivered by the party or parties thereto, in form and substance satisfactory to such Purchaser dated the Restatement Date unless otherwise indicated, and, on the Restatement Date, in full force and effect with no event having occurred and being then continuing that would constitute a default thereunder or constitute or provide the basis for the termination thereof:
(which i) (1) a Guaranty Agreement in favor of the holders of the Notes in the form of Exhibit E-1 hereto (including any joinder thereto and as the same may be amended, modified or supplemented from time to time in accordance with the provisions thereof, collectively called the “Guaranty Agreement”), made by telecopy each Person which is, on the Restatement Date, a co-borrower or other electronic transmissiona co-obligor with the Company under, or is obligated under a Guaranty with respect to, any Indebtedness of the Company under the Primary Working Capital Facility and is not then a party to the Guaranty Agreement; and (2) executed by an Officer’s Certificate certifying as to any Person which is then a co-borrower or co-obligor with the BorrowerCompany under, or obligated under a Guaranty with respect to, any Indebtedness of the MLP, Company under the other Loan Parties, the Administrative Agent, and the LendersPrimary Working Capital Facility;
(bii) 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 noteIntercreditor Agreement;
(ciii) the Administrative Intercompany Subordination Agreement;
(iv) the Security Agreement;
(v) the Pledge Agreement;
(vi) all chattel paper, instruments and documents of title in which the Collateral Agent has been granted a security interest and are then required under the Collateral Documents to be delivered to the Collateral Agent, together with the related transfer documents executed in blank, in each case received by the Collateral Agent, all Uniform Commercial Code financing statements perfecting the security interests and liens granted to the Collateral Agent, duly filed in all offices necessary to perfect such security interests and liens or deemed by such Purchaser to be advisable, and all such other certificates, documents, agreements, recording and filings necessary to establish a valid and perfected first priority lien and security interest (isubject only to Permitted Liens) in favor of the Collateral Agent in all of the Collateral or deemed by such Purchaser to be advisable;
(vii) a Secretary’s Certificate signed by the Secretary or an Assistant Secretary and one other officer of the Company and each Guarantor certifying, among other things, (1) as to the names, titles and true signatures of the officers of the Company or such Guarantor, as the case may be, authorized to sign the documents to be delivered in connection with this Agreement and the other Transaction Documents to which the Company or such Guarantor, as the case may be, is a party, (2) that attached thereto is a true, accurate and complete copy of the certificate of each Loan Partyincorporation or other formation document of the Company or such Guarantor, dated as the case may be, certified by the Secretary of State of the state of organization of the Company or such Guarantor, as the case may be, as of a recent date, (3) that attached thereto is a true, accurate and complete copy of the by-laws, operating agreement or other organizational document of the Company or such Guarantor, as the case may be, which were duly adopted and are in effect as of the Fifth Amendment Effective Restatement Date and executed by an appropriate officer, which shall (A) certify have been in effect immediately prior to and at all times since the adoption of the resolutions referred to in clause (4), below, (4) that attached thereto is a true, accurate and complete copy of the resolutions of the board of directors or other action managing body of the Company or such Guarantor, as the case may be, duly adopted at a meeting or by unanimous written consent of such board of directors or other managing body, authorizing the execution, delivery and performance of the Transaction Documents to which the Company or such Guarantor, as the case may be, is a party, being delivered on the Restatement Date and the other documents to be delivered in connection with this Fifth Amendment Agreement and (B) certify such other Transaction Documents to which the Company or such Guarantor, as the case may be, is a party, and that certain documents previously delivered to the Administrative Agent such resolutions have not been amended, modified, revoked or rescinded, and are in full force and effect and are the only resolutions of the shareholders, partners or members of the Company or such Guarantor, as the case may be, or of such board of directors or other managing body or any committee thereof relating to the subject matter thereof, (5) the Transaction Documents being delivered on the Restatement Date and the other documents to be delivered in connection with this Agreement executed and delivered to such Purchaser by the Company or such Guarantor, as the case may be, are in the form approved by its board of directors or other managing body in the resolutions referred to in clause (4), above and (6) that no dissolution or liquidation proceedings as to the Company or any Subsidiary have been commenced or are contemplated;
(viii) a certificate of corporate or other type of entity and tax good standing for each Transaction Party from the Secretary of State dated as of or as of a date reasonably prior to the Fifth Amendment Effective Restatement Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority (1) of the jurisdiction state of organization of such Loan Transaction Party and (2) of each state in which such Transaction Party is required to be qualified to transact business as a true foreign organization and correct copy of its bylaws where the failure to be so qualified or operatinglicensed could reasonably likely have a Material Adverse effect, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for in each Loan Party from its jurisdiction of incorporation or organization case dated as of a recent date;
(ix) certified copies of Requests for Information or Copies (Form UCC-11) or equivalent reports in each case dated as of a date reasonably prior to the Restatement Date listing all effective financing statements which name any Transaction Party (under its present name and previous names used) as debtor and which are filed in the office of the Secretary of State (or such other office which is, under the Uniform Commercial Code as in effect in the applicable jurisdiction, the proper office in which to file a financing statement under Section 9-501(a)(2) of such Uniform Commercial Code) of the location (as determined under the Uniform Commercial Code) of such Transaction Party together with, to the extent requested by Prudential, copies of such financing statements, and (iii) a certificate lien and judgment search reports from the chief financial officer county recorder of the Borrower any county in which such Transaction Party maintains an office or in which any assets of such Transaction Party are located; and
(x) such other certificates, documents and the MLP agreements as such Purchaser may reasonably request.
(in form and substance reasonably satisfactory to the Administrative Agent, b) Each Purchaser shall have received from ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇. ▇▇▇▇▇ Fargo Securities▇▇▇, LLC Vice President and RBC Capital MarketsCorporate Counsel of Prudential, togetheror such other counsel who is acting as special counsel for such Purchaser in connection with this Agreement, a favorable opinion satisfactory to such Purchaser as to such matters incident to the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;matters herein contemplated as it may reasonably request.
(dc) the Administrative Agent has Each Purchaser shall have received opinions of (i) from Squire ▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.(US) LLP, special counsel for the Company and the Guarantors (or such other counsel designated by the Company and acceptable to such Purchaser), a favorable opinion satisfactory to such Purchaser, dated the Restatement Date, and substantially in the form of Exhibit F attached hereto and as to such other matters as such Purchaser may reasonably request. The Company, by its execution hereof, hereby requests and authorizes such special counsel to render such opinion and to allow such Purchaser to rely on such opinions and understands and agrees that each Purchaser receiving such an opinion will be relying on and is hereby authorized to rely on such opinion.
(d) The representations and warranties contained in paragraph 8 and in the Loan Parties Guaranty Agreement shall be true on and (ii) local counsel in each jurisdiction applicable as of the Restatement Date, both before and immediately after giving effect to the consummation of the transactions contemplated by this Fifth Amendment hereby; there shall exist on the Restatement Date no Event of Default or Default, both before and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable immediately after giving effect to the Administrative Agent consummation of the transactions contemplated hereby; the Company and its counsel;each Guarantor shall have performed all agreements and satisfied all conditions required under this Agreement or the Guaranty Agreement to be performed or satisfied on or before the Restatement Date; and the Company and each Guarantor shall have delivered to such Purchaser an Officer’s Certificate, dated the Restatement Date, to each such effect.
(e) all governmental The Company shall have paid to each Purchaser in immediately available funds any fees due it pursuant to or in connection with this Agreement, including the Structuring Fee and third party consents the Amendment Fee due pursuant to paragraph 2A(8)(i).
(f) The Company shall have delivered from insurance carriers acceptable to each Purchaser certificates and/or other evidence of insurance in such forms and amounts acceptable to such purchaser evidencing insurance required to be maintained under paragraph 5F hereof or under any of the transactions contemplated hereby, Collateral Documents under insurance policies with loss payable clauses in favor of the obtaining of which is a condition Collateral Agent and acceptable to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the such Purchaser.
(g) The Credit Agreement, providing for a $550,000,000 revolving credit facility to the Company (which may be increased (or potential term loans may be added) to an aggregate amount not to exceed $700,000,000) and having other terms and conditions satisfactory to such Purchaser, shall have been obtained duly executed and delivered by the Company, the Bank Agent and the Banks, and shall be in full force and effect;
(f) . All conditions precedent to the Administrative Agent has received a certificate signed by a Responsible Officer making of the Borrower certifying initial revolving loans under the Credit Agreement shall have been satisfied except to the extent waived with the consent of such Purchaser (and, to the extent any part of any such condition requires that (iany matter be satisfactory to the Bank Agent, the Banks or any portion of the Banks, such matter shall be satisfactory to such Purchaser) and prior to, or concurrently with, the representations and warranties contained effectiveness of this Agreement, the Company shall have received the proceeds of the initial revolving loans thereunder. All necessary authorizations, consents, approvals, exceptions or other actions by or notices to or filings with any court or administrative or governmental body or other Person required in Article V connection with the execution, delivery or performance of the Credit Agreement are true and correct in all material respects on and as or the consummation of such date (unless such representations and warranties specifically refer to an earlier date, in which case such representations and warranties the transactions contemplated thereby shall be true final and correct in all material respects as full force and effect and shall be in form and substance satisfactory to such Purchaser. Each Purchaser shall have received a copy of such earlier date), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement and all instruments, documents and agreements delivered at the closing of making of the initial revolving loans thereunder, certified by an Officer’s Certificate, dated the Restatement Date, as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to correct and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreementcomplete, and (v) no actionsuch Officer’s Certificate shall confirm that the Mexicana Credit Agreement has not been amended, suitrestated, investigation supplemented or proceeding is pending orotherwise modified since March 15, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;2017.
(h) Each Purchaser shall have received a duly completed certificate signed by an Authorized Officer of the Borrower has (i) delivered an amendment Company demonstrating pro forma covenant compliance, after giving effect to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection Transaction, with the filing financial covenants set forth in paragraphs 6A(1) and 6A(2) as of such amendments the last day of the fiscal quarter of the Company most recently ended prior to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;Restatement Date.
(i) the Administrative Agent Each Purchaser shall have received (on behalf of a financial forecast model for the Exiting Lenders) funds necessary Company and its Subsidiaries in form and substance satisfactory to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; andsuch Purchaser.
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4paragraph 11B hereof, the Administrative Agent Company shall promptly provide written notice have paid the reasonable fees, charges and disbursements of any special counsel to the Borrower, Purchasers in connection with this Agreement or the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingtransactions contemplated hereby.
Appears in 1 contract
Sources: Private Shelf Agreement (Advanced Drainage Systems, Inc.)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or electronic copies (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) duly authorized officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each applicable signing Loan Party, each dated as of the Fifth Amendment Effective Date and executed by an appropriate officer(or, which shall (A) certify in the resolutions or other action authorizing the executioncase of certificates of governmental officials, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Effective Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;:
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by executed counterparts of this Fifth Amendment and as reasonably requested Agreement executed by the Administrative Agent, Existing ABL Lenders constituting the Required Lenders (under and as defined in the Existing ABL Credit Agreement), any Person becoming a Lender as of Effective Date and each Loan Party;
(ii) each Note executed by the Borrowers in favor of each Lender requesting a Note or Notes;
(iii) the Security Agreement executed by each Loan Party;
(iv) [reserved];
(v) [reserved;]
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case in form and substance acceptable to case, as the Administrative Agent may reasonably require evidencing the identity, authority and its counselcapacity of each officer of each such Loan Party or Restricted Subsidiary executing the Loan Documents to which each such Loan Party or Restricted Subsidiary is a party;
(evii) all governmental such documents and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) certifications as the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying may reasonably require to evidence that each Loan Party (iother than any Immaterial Restricted Subsidiary) the representations is duly organized or formed, and warranties contained in Article V of the Credit Agreement are true and correct in all material respects on and as of that each such date (unless such representations and warranties specifically refer to an earlier dateLoan Party is validly existing, in which case good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such representations and warranties shall be true and correct in all material respects as of such earlier date)qualification, (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, except to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties extent that could failure to do so would not reasonably be expected to have a Material Adverse Effect;
(gviii) the Borrower has paid executed opinions of (i) fees Hunton ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to certain of Borrowers and special New York counsel to certain of the Arrangers, the Administrative Agent other Loan Parties (on behalf of itself and the Lendersother than any Immaterial Restricted Subsidiaries) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ PLLC, special counsel to certain of the Loan Parties (other than any Immaterial Restricted Subsidiary), in each case, addressed to the Administrative Agent’s , the Collateral Agent and the Arrangers’ reasonable legal fees each Lender, in form and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory substance reasonably acceptable to the Administrative Agent and the Arrangers for payment of such amountsCollateral Agent;
(i) Audited Financial Statements, (ii) unaudited condensed consolidated financial statements of the Company (consistent with the requirements applicable to unaudited financial statements to be filed with the SEC) for the quarters ending March 31, 2021, June 30, 2021 and September 30, 2021 prepared in accordance with GAAP and for the elapsed period of the fiscal year ending on the last day of such fiscal quarter and for the comparable periods of the prior fiscal year and (iii) financial projections (including the assumption on which such projections are based) for fiscal years 2021 through 2024;
(x) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.01(c) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has not occurred since December 31, 2020, any Material Adverse Effect;
(xi) a solvency certificate from the chief financial officer of the Company in the form of Exhibit L, which demonstrates that the Company and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions contemplated hereby, will be, Solvent;
(xii) copies of UCC, tax and judgment Lien searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party (other than any Immaterial Restricted Subsidiary) as debtor and that are filed in those state and county jurisdictions in which any Material Real Property of any Loan Party (other than any Immaterial Restricted Subsidiary) is located and the state and county jurisdictions in which any Loan Party (other than any Immaterial Restricted Subsidiary) is organized or maintains its principal place of business and such other searches that the Administrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Agreements (other than Permitted Liens);
(xiii) a completed Collateral Questionnaire dated the Effective Date and executed by a Responsible Officer of the Borrower Representative in respect of each Loan Party (other than any Immaterial Restricted Subsidiary);
(xiv) a Borrowing Base Certificate covering the Borrowing Base as of the Effective Date, with customary supporting documentation; and
(xv) [reserved].
(i) Any fees required to be paid on or before the Effective Date to the Administrative Agent, the Arrangers or the Lenders pursuant to the Engagement Letter shall have been paid and (ii) any costs and expenses required to be paid on or before the Effective Date to the Administrative Agent or the Arrangers to the extent invoices have been received by the Company at least two (2) Business Days prior to the Effective Date (or such later date as reasonably agreed by the Company) shall have been paid.
(c) The Company and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding financial assurance requirements (including but not limited to reclamation bonding requirements).
(d) The Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 6.07.
(on behalf e) Subject to Section 6.21, in order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Collateral Documents), each Loan Party shall have delivered to Collateral Agent:
(i) executed counterparts of the Exiting LendersSecurity Agreement;
(ii) funds necessary evidence reasonably satisfactory to pay all principalAdministrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Collateral Documents (including their obligations to execute or authorize, interestas applicable, fees and other charges owed deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii) with respect to any Intellectual Property for which a security interest has not been perfected by filing of the IP Security Agreements filed in connection with the Existing ABL Credit Agreement, fully executed IP Security Agreements (or supplements thereto, as applicable), in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Exiting Lenders under the Loan DocumentsSecurity Agreement; and
(jiv) the Administrative Agent has received such evidence that each Loan Party shall have taken or caused to be taken any other documents action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or caused to be made any other filing and recording (other than as may be set forth herein) reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingAgent.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Alpha Metallurgical Resources, Inc.)
Conditions of Effectiveness. This Fifth Amendment Agreement shall not be become effective until as of the date (the “Third Amendment Effective Date”) when, and only when, each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has shall have received a an executed counterpart hereof from each of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, Borrowers and the Required Lenders;.
(b) The Administrative Agent shall have received the following, each dated as of the Third Amendment Effective Date (unless otherwise specified), and in such number of copies as the Administrative Agent has received an amended and restated promissory note payable shall have requested:
(i) to each the extent requested by any Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to in accordance with Section 2.09(a2.4(d) of the Amended Credit Agreement in the amount of Agreement, a Note or Notes for such Lender’s Commitment ;
(ii) an executed counterpart of the Consent, Reaffirmation, and Agreement of Guarantor from each Guarantor;
(iii) the Security Agreement, duly completed and executed by the Credit Parties, together with any certificates evidencing the Capital Stock being pledged thereunder as indicated on Schedule 2.01 of the Third Amendment Effective Date and undated assignments separate from certificate for any such certificate, duly executed in blank; and
(iv) Assignments and Grants of Security Interests for the federally registered Intellectual Property referred to in Annexes D, E and F of the Security Agreement, in substantially the form of Exhibits B and C (as applicable) to the Security Agreement, in each case duly completed and executed by each applicable 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;Party.
(c) the The Administrative Agent has shall have received (i) a certificate of the secretary or an assistant secretary of each Loan Party, dated Credit Party executing any Credit Documents as of the Fifth Third Amendment Effective Date, dated the Third Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that 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 such Credit Party, 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) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of such Credit Party, as 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 certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above.
(d) The favorable opinions of (A) Skadden , Arps, Slate, ▇▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇& ▇▇▇▇ Fargo SecuritiesLLP, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special counsel to the Loan Parties Credit Parties, and (iiB) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and Credit Parties in such jurisdictions as may be reasonably requested by the Administrative Agent, in each case all in form and substance acceptable reasonably satisfactory to the Administrative Agent and its counsel;Agent.
(e) all governmental The Administrative Agent shall have received certified reports from an independent search service satisfactory to it listing any tax lien filing or Uniform Commercial Code financing statement that names any Credit Party as debtor in the state of incorporation or formation of such Credit Party, and third party consents the results thereof shall be reasonably satisfactory to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;Administrative Agent.
(f) the The Administrative Agent has shall have received a certificate signed by a Responsible Officer of the Borrower certifying evidence in form and substance satisfactory to it that (i) 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 datefilings, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date)recordings, (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) registrations and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and actions (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with including, without limitation, the filing of such amendments duly completed UCC-1 financing statements in each jurisdiction listed on Annex A to the applicable MortgagesSecurity Agreement) necessary to perfect the Liens created by the Security Documents shall have been completed, or has made arrangements satisfactory to the Administrative Agent for the completion thereof shall have been made.
(g) The Borrowers shall have paid to the Administrative Agent, for the benefit of each Lender who approves this Amendment a nonrefundable amendment fee in the amount of 0.50% of the sum of each such approving Lender’s final allocated Term Loan and Revolving Credit Commitment, which fee shall be deemed fully earned as of the Arrangers for payment Third Amendment Effective Date.
(h) The Borrowers shall have paid to the Arranger and Wachovia the other fees required under the engagement letter from the Arranger and Wachovia to the Borrowers, dated as of such amounts;April 14, 2009.
(i) The Borrowers shall have paid all reasonable out-of-pocket costs and expenses of the Administrative Agent shall have received in connection with the preparation, negotiation, execution and delivery of this Amendment Agreement (on behalf of including, without limitation, the Exiting Lenders) funds necessary to pay all principal, interest, reasonable and documented fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) out-of-pocket expenses of counsel for the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lenderrespect thereto). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth The effectiveness of this Amendment shall not be effective until is subject to the date each of the following conditions precedent has been satisfiedthat:
(a) the Administrative The Agent has shall have received a counterpart counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) duly executed by the Borrower, each of the MLPLenders, each of the other Loan Parties, the Administrative Agent, Incremental Lenders and the Lenders;Agent.
(b) the Administrative The Agent has shall have 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) counterparts of the Credit Agreement Consent and Reaffirmation substantially in the amount of such Lender’s Commitment form attached as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that Exhibit A hereto duly executed by 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;Loan Party.
(c) the Administrative The Agent has shall have received (i) a certificate copies of each Loan Party’s Governing Documents, dated as of the Fifth Amendment Effective Date and executed by an appropriate officeramended, which shall (A) certify the resolutions modified, or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered supplemented prior to the Administrative Agent are in full force and effect as of the Fifth Amendment No. 2 Effective Date or contain appropriate attachmentsDate, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority Secretary or other authorized officer of such Loan Party; provided, however, that such certificate may certify that the jurisdiction of organization Governing Documents of such Loan Party and have not changed since delivered to the Agent on the Closing Date or Amendment No. 1 Effective Date, as applicable.
(d) The Agent shall have received a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a solvency certificate from the chief financial officer Chief Financial Officer of the Borrower and the MLP (Borrower, in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securitiescertifying to solvency as required pursuant to the Credit Agreement, LLC as amended by this Amendment.
(e) The Agent shall have received a letter, in form and RBC Capital Markets substance satisfactory to the Agent, from the Revolving Agent respecting the amount necessary to repay in full all of the obligations of the Loan Parties owing under the Revolving Credit Agreement and obtain a release of all of the Liens existing in favor of the Revolving Agent in and to the assets of the Loan Parties, together with termination statements and other documentation evidencing the termination by the Revolving Agent of its Liens in and to the properties and assets of the Loan Parties.
(▇▇▇▇▇ Fargo Securities, LLC f) The Agent shall have received an opinion of the Loan Parties’ counsel in form and RBC Capital Markets, togethersubstance satisfactory to the Agent in each of the following jurisdictions: Delaware; New York; Pennsylvania; and Canada.
(g) To the extent applicable, the “Arrangers”)Agent shall have received a certificate of status with respect to the Borrower, dated within thirty (30) certifying thatdays of the Amendment No. 2 Effective Date, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of such certificate shall (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.be issued by the appropriate officer of the Borrower’s jurisdiction of organization, counsel to the Loan Parties and (ii) local counsel indicate that the Borrower is in each jurisdiction applicable to good standing in such jurisdiction.
(h) The Loan Parties shall have paid all Lender Group Expenses outstanding and/or incurred in connection with the transactions contemplated evidenced by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable Agent to the Administrative Agent and its counsel;be paid.
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the The representations and warranties of the Loan Parties contained in Article V the Agreement or in each of the Credit Agreement other Loan Document 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; andNo. 2 Effective Date.
(j) No default or event of default under the Administrative Agent has received such other documents as may be reasonably required Loan Documents shall have occurred or shall result from the making of Incremental Term Loan by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Incremental Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth The amendments to the Credit Agreement set forth in Section 2 of this Second Amendment shall not be effective until on the date each of Second Amendment Effective Date, provided that the following conditions precedent has been satisfiedAdministrative Agent shall have received the following:
(a) the Administrative Agent has received a counterpart of this Fifth Second Amendment executed by each of the parties hereto (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders);
(b) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officer as the Administrative Agent has received an amended may reasonably require to establish the identities of and restated promissory note payable verify the authority and capacity of each Responsible Officer thereof authorized to each Lender that has previously requested act as a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement Responsible Officer 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 noteconnection with this Second Amendment;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer appropriate governmental authority in the Borrower’s state of organization evidencing that the Borrower is in good standing, and the MLP (in form and substance reasonably satisfactory a certificate of a Responsible Officer certifying that no amendments have been made to the Administrative AgentBorrower’s Organization Documents since January 24, ▇▇▇▇▇ Fargo Securities2003, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securitiesor if such amendments have been made, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventcopy of such amendments;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by of a Responsible Officer of the Borrower certifying that (i) 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that since the date of the financial statements dated as of December 31, 2003 delivered pursuant to Section 6.01(a) of the Credit Agreement which has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(ge) 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;
(f) evidence that the commitments under the Amended and Restated 364-Day Credit Agreement, dated as of January 24, 2003, by and among the Borrower, the Administrative Agent, the Existing Lenders, and the other agents named therein, as amended by that certain First Amendment to Amended and Restated 364-Day Credit Agreement dated as of January 12, 2004, have been, or concurrently with the Second Amendment Effective Date are being, terminated, and that the Borrower has paid repaid all amounts owed thereunder upon such termination;
(ig) fees to the Arrangers, the Administrative Agent (on behalf of itself all arrangement and the Lenders) and other upfront fees and expenses due and payable pursuant of the Arranger required to any fee letters applicable to this Fifth Amendment between be paid by the Borrower and concurrently with the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;Second Amendment Effective Date; and
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing such other assurances, certificates, documents, consents or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to opinions as the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4Agent, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of Issuer, or the effectiveness of this Fifth Amendment, Required Lenders reasonably may require and such notice shall be conclusive and bindingtimely request.
Appears in 1 contract
Conditions of Effectiveness. This Fifth The effectiveness of this Seventh Amendment shall not be effective until is expressly conditioned upon the date each occurrence and completion of all of the following conditions precedent has been satisfied:
following: (ai) receipt by the Agent of the nonrefundable fee set forth in that certain letter agreement among the Agent and the Borrowers with respect to this Seventh Amendment; (ii) receipt by the Agent on behalf of the Banks of the nonrefundable fees equal to the aggregate of the amounts set forth on Exhibit II hereto; (iii) the Administrative Agent has received a counterpart Agent's receipt of counterparts of this Fifth Seventh Amendment (which may be by telecopy or other electronic transmission) duly executed by the BorrowerBorrowers, the MLP, the other Loan Parties, the Administrative Agent, Guarantors and the Lenders;
Banks; (biv) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested Agent's receipt of a promissory note, as applicable, certificate signed by the Secretary or that is requesting a promissory note pursuant to Section 2.09(a) Assistant Secretary of the Credit Agreement in Borrowers and Guarantors, certifying as to all action taken by the amount of such Lender’s Commitment as indicated on Schedule 2.01 Borrowers and Guarantors to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing authorize the execution, delivery and performance of this Fifth Amendment and Seventh Amendment; (Bv) certify that certain documents previously delivered an opinion of Pete▇ ▇. ▇▇▇▇▇▇, ▇▇neral Counsel of the Loan Parties, reasonably satisfactory to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent dateregarding this Seventh Amendment, and (iiivi) with respect to each new Guarantor or new Borrower (a "Joining Subsidiary") documentation as required under Section 11.18 of the
(1) to the Credit Agreement, in the case of a Joining Subsidiary which becomes a Borrower, and Exhibit 1.01(G)
(2) to the Credit Agreement, in the case of a Joining Subsidiary which becomes a Guarantor, (D) if it owns stock or other ownership interests in any Qualifying Subsidiary, a joinder to the Pledge Agreement executed by certain Loan Parties which is in the form of Exhibit 1.01(P)(4) to the Credit Agreement, 1.01(P)(5) to the Credit Agreement, or 1.01(P)(6) to the Credit Agreement, as applicable, and delivering, as applicable, the original certificates evidencing such stock or other ownership interest if it is certificated with appropriate stock powers or other assignments signed in blank and UCC-1 financing statements necessary to perfect the security interests of the Agent for the benefit of the Banks therein, (E) a certificate from joinder to the chief financial officer Subordination Agreement (Intercompany) executed by certain Loan Parties which is in the form of Exhibit 1.01(S) to the Credit Agreement, (F) a joinder to the Agency Agreement executed by certain Loan Parties appointing NovaCare as agent; (2) delivering to the Agent an opinion of Pete▇ ▇. ▇▇▇▇▇▇, ▇▇neral Counsel of the Borrower Loan Parties, reasonably satisfactory to the Agent regarding such Joining Subsidiary and such joinder;
(3) delivering to the Agent certified copies of its organizational documents and other documents as requested by the Agent; and (4) the Loan Party which owns the stock or other ownership interest of the Joining Subsidiary shall execute and deliver to the Agent for the benefit of the Banks a Pledge Agreement in the form of Exhibit 1.01(P)(4), 1.01(P)(5) or 1.01(P)(6) to the Credit Agreement, as applicable, and the MLP original certificates evidencing such stock or other ownership interest if it is certificated with appropriate stock powers or other assignments signed in blank and UCC-1 financing statements necessary to perfect the security interests of the Agent for the benefit of the Banks therein, and (G) updated Schedules to the Credit Agreement and the other Loan Documents, if any, to update such schedules with respect to each Joining Subsidiary, such updated Schedules to be in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions Required Banks. This Seventh Amendment shall be dated as of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer effective as of the Borrower certifying that (i) the representations date and warranties contained in Article V year first above written subject to satisfaction of the Credit Agreement are true and correct in all material respects on and conditions precedent to effectiveness 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice which date shall be conclusive and bindingthe Seventh Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Novacare Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of this Agreement and the date obligation of each Term Lender to make its Term Loan hereunder is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Restatement Effective Date (or, in the case of certificates of governmental officials and the Borrower Detail Form, a recent date before the Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent has received a counterpart and each of the Lenders:
(i) executed counterparts of this Fifth Amendment Agreement;
(which may be by telecopy or other electronic transmissionii) a Revolving Credit Note executed by the BorrowerBorrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iii) Such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the MLPAdministrative 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 Parties, the Administrative Agent, and the LendersDocuments to which such Loan Party is a party;
(biv) such documents and certifications as the Administrative Agent has received an amended and restated promissory note payable may reasonably require 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 evidence that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of Loan Party is duly organized or formed, and that each Loan PartyParty is validly existing, dated as of the Fifth Amendment Effective Date in good standing and executed by an appropriate officer, which shall qualified to engage in business in (A) certify the resolutions or other action authorizing the execution, delivery and performance its jurisdiction of this Fifth Amendment organization and (B) certify that certain documents previously delivered each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the Administrative Agent are in full force extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions addressed and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securitiesthe L/C Issuers and the Lenders, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect from counsel reasonably acceptable to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Agent, counsel as to the matters concerning the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and Loan Documents as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counselmay reasonably request;
(evi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all governmental consents, licenses and third party consents approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to the transactions contemplated hereby, the obtaining of which it is a condition to the MLP’sparty, the Borrower’s or their affiliates’ funding obligations under the Credit Agreementand such consents, have been obtained licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(fvii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (ib) 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)have been satisfied, (iiB) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, that there has been no event or circumstance since December 31, 2023 that has had or could be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, (ivC) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) that no action, suit, investigation or proceeding is pending or, to the knowledge of such officerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority by that (1) relates to this Agreement or against the Borrower, any Guarantor, the MLP’s general partnerother Loan Document, or any of their respective properties that the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse EffectEffect and (D) a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal year of the REIT ended December 31, 2023;
(gviii) a Solvency Certificate from the REIT certifying that, after giving effect to the transactions to occur on the Restatement Effective Date (including, without limitation, all Credit Extensions to occur on the Restatement Effective Date), each Loan Party is, individually and together with its Subsidiaries on a consolidated basis, Solvent;
(ix) a duly completed compliance certificate, giving pro forma effect to the transactions to occur on the Restatement Effective Date (including, without limitation, all Credit Extensions to occur on the Restatement Effective Date);
(x) duly completed Borrower Detail Form signed by a Responsible Officer of the Borrower;
(xi) the Borrower has financial statements referenced in Section 5.05(a) and (b);
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Required Lenders or the Required Term Lenders reasonably may require.
(b) Any fees required hereunder or under the Fee Letters to be paid on or before the Restatement Effective Date shall have been paid.
(ic) fees Completion of all due diligence with respect to the ArrangersREIT, the Borrower, and their respective Subsidiaries and properties in scope and determination satisfactory to the Administrative Agent, the Bookrunners, the Arrangers and the Lenders in their sole discretion.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) prior to or on behalf the Restatement Effective Date, plus such additional amounts of itself such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Arrangers Administrative Agent).
(e) At least ten Business Days prior to the Restatement Effective Date, the Administrative Agent and (ii) each Lender shall have received documentation and other information with respect to each of the Loan Parties that is required, in the Administrative Agent’s or such L▇▇▇▇▇’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Arrangers’ reasonable legal fees USA PATRIOT Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification) and expenses to regulations implemented by the extent invoiced prior to closing;US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
(hf) All amounts owing (whether or not due) under the Borrower has (i) delivered an amendment Existing Credit Agreement and related documents through and including the Restatement Effective Date to each applicable Mortgage to extend the maturity date described therein and Departing Lender shall have been (iior shall concurrently be) paid funds sufficient to pay any filing in full, and all accrued and unpaid interest and fees (whether or recording tax or fee in connection with not due), and all other amounts payable, under the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent Existing Credit Agreement shall have received been (on behalf of the Exiting Lendersor shall concurrently be) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangerspaid in full. Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this amendment and restatement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or telecopies (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the MLPRestatement Effective Date (or, in the other Loan Partiescase of certificates of governmental officials, a recent date before the Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent, the Syndication Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the LendersBorrower;
(bii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent has received an amended may require evidencing the identity, authority and restated promissory note payable capacity of each Responsible Officer thereof authorized to each Lender that has previously requested act as a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of Responsible Officer in connection with this Agreement and 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 noteother Loan Documents;
(civ) such documents and certifications as the Administrative Agent has received may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in the state of Nevada.
(iv) favorable opinions of the General Counsel of the Borrower and of O’Melveny & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate of each Loan Party, dated as a Responsible Officer of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall Borrower either (A) certify the resolutions or other action authorizing attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, validity against the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable Documents to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which it is a condition to the MLP’sparty, the Borrower’s or their affiliates’ funding obligations under the Credit Agreementand such consents, have been obtained licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required, other than, in the case of either clause (A) or (B), any such consents, licenses or approvals under applicable Gaming Laws which are not required to be obtained on or prior to the Restatement Effective Date, which consents, licenses or approvals the Borrower will seek in due course after the Restatement Effective Date;
(fvii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (ib) 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 have been satisfied; (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), (iiB) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, ; and (ivC) there is no litigation, investigation or proceeding known the current Debt Ratings and a calculation of the Debt to and affecting Capitalization Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Restatement Effective Date; and
(viii) such other assurances, certificates, documents, consents or any affiliate for which opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Restatement Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower is required shall have paid all fees, charges and disbursements of counsel to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;or on the Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(hd) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent The Restatement Effective Date shall have received (occurred on behalf of the Exiting Lenders) funds necessary to pay all principalor before June 30, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers2009. Without limiting the generality of the provisions of Article IX of the Credit AgreementSection 9.04, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment Sections 9 and 24 of Article I, and Article II, shall not be become effective until as of the date hereof when the Agent shall have received counterparts of this Amendment executed by each of the Borrower, the Guarantors, the Lenders and the Agent, and all other provisions of Article I shall become effective when, and if, on or before February 28, 1998, each of the following conditions precedent has shall have been satisfied:fulfilled (the "Amendment Effective Date"):
(a) the Administrative The Agent has shall have received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed copies, certified by the BorrowerSecretary or an Assistant Secretary of the Borrower to be correct, of all company action taken by the MLP, Borrower to authorize the other Loan Parties, issuance of the Administrative Agent, Subordinated Indebtedness and this Amendment and the Lenderstransactions contemplated thereby and hereby together with (i) the certificate of formation and operating agreement of the Borrower and (ii) such other documents as the Agent shall reasonably require;
(b) The Agent shall have received a certificate from a Financial Officer of the Administrative Agent Borrower certifying as to the following:
(i) that the Borrower 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) the proceeds of the Credit Agreement in Subordinated Indebtedness and setting forth the aggregate amount of such Lender’s Commitment as indicated on Schedule 2.01 to Subordinated Indebtedness issued by 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 noteBorrower;
(cii) the Administrative Agent has received (i) a that attached to such certificate of each Loan Partyare duly executed, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy copies of its bylaws or operatingthe indenture, management or partnership agreementthe notes, the offering memorandum and incumbency certificates, all other documents executed in connection with the issuance of the Subordinated Indebtedness (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and the "Transaction Documents");
(iii) a certificate from the chief financial officer that each of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which Transaction Documents attached thereto is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(fc) the Administrative The Agent has shall have received a certificate signed by Compliance Certificate from a Responsible Financial Officer of the Borrower certifying that as to the following: (i) the representations and warranties contained in Article V certifying as to compliance with Section 7.11 of the Credit Agreement are true (the determination of compliance with such ratios to be calculated on a pro forma basis as if such Subordinated Indebtedness were incurred and correct proceeds thereof were so applied, in all material respects on and as each case, at the beginning of such date (unless such representations period) 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), (ii) certifying that immediately prior thereto and after giving effect to the incurrence of such Subordinated Indebtedness, no Default or Event of Default has shall have occurred and is continuing under the Credit Agreement as be continuing;
(d) The Agent shall have received an opinion of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected counsel to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which in form and substance satisfactory to the Borrower is required Agent;
(e) All of the conditions precedent set forth in Article II, Section 1 with respect to give notice under the Credit AgreementFinance Formation shall have been fulfilled in accordance with the terms and conditions thereto;
(f) The Agent shall be satisfied in all respects with the Transaction Documents, including, without limitation, the subordination provisions, and (v) no action, suit, investigation or proceeding is pending or, with respect to the knowledge of such officer, threatened any guarantees issued by Borrower's Subsidiaries in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effectconnection therewith;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other The fees and expenses due of Special Counsel in connection with the preparation, negotiation and payable pursuant to any fee letters applicable to closing of this Fifth Amendment between the Borrower Amendment, and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;effectiveness thereof, shall have been paid; and
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative The Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingreasonably require.
Appears in 1 contract
Conditions of Effectiveness. This Fifth First Amendment shall not be become effective until upon the date each satisfaction of the following conditions precedent has been satisfied:(such date, the “First Amendment Effective Date”):
(a) the The Administrative Agent has shall have received (each of the documents in subclauses (i) through (iii) being referred to herein as an “Amendment Document”):
(i) this First Amendment, executed and delivered by a counterpart duly authorized officer of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenderseach Lender;
(bii) 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) reaffirmation of the Credit Guaranty Agreement in the amount and each Security Document, executed and delivered by a duly authorized officer of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving party thereto which is a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory noteGroup Entity, other than ▇▇▇▇▇▇▇ Fibres Chile S.A.;
(ciii) an amendment to that certain Waiver Letter dated as of August 9, 2015 (the Administrative Agent has received “Existing Waiver Letter”) in the form attached as Annex V hereto, executed and delivered by a duly authorized officer of each party thereto (ithe “Amendment to Waiver Letter”);
(iv) [Reserved.]
(v) (A) to the extent the same have been amended, supplemented or otherwise modified since the Restatement Effective Date, a certificate of a Responsible Officer of each of the Borrower and the Parent Guarantor, certifying copies of the Constituent Documents (including any amendments or supplements thereto) of such Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (AB) certify the resolutions or other action authorizing and approving the execution, delivery and performance by each of this Fifth the Borrower and the Parent Guarantor of the Amendment Documents to which such Loan Party is a party, and (BC) certify that certain all documents previously delivered evidencing all other necessary company action, governmental approvals and third-party consents, if any, for each of Borrower and the Parent Guarantor with respect to each Amendment Document;
(vi) to the Administrative Agent are in full force extent the same have changed since the Restatement Effective Date, a certificate of a Responsible Officer of each of Borrower and effect as the Parent Guarantor certifying the names and true signatures of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization Responsible Officers of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for authorized to sign each Amendment Document to which such Loan Party from its jurisdiction of incorporation or organization as of is a recent date, and party;
(iiivii) a certificate from the chief financial officer or chief executive officer of the Parent Guarantor, certifying on behalf of the Parent Guarantor, the Borrower, Rentech Development Corporation, Rentech WP U.S. Inc., RTK WP Holdings, ULC, RTK WP Canada, ULC, RTK WP2 Holdings, ULC, RTK WP2 Canada, ULC, RTK (Luxembourg) WP S.ÀR.L. and ▇▇▇▇▇▇▇ Fibres, Inc. (collectively, the “Certifying Loan Parties”) that, on and as of the First Amendment Effective Date, and after giving effect to the transactions contemplated hereby and the Liens created pursuant hereto, (A) the present fair value of each Certifying Loan Party’s assets exceeds the total amount of such Certifying Loan Party’s liabilities (including, without limitation, contingent liabilities), (B) each Certifying Loan Party has capital and assets sufficient to carry on its businesses, (C) each Certifying Loan Party is not engaged and is not contemplating engagement in a business or a transaction for which its remaining assets are unreasonably small in relation to such business or transaction, (D) no Certifying Loan Party intends to incur or believes that it will incur debts beyond its ability to pay as they become due and (E) no Certifying Loan Party will be rendered insolvent by the execution, delivery and performance of the Amendment Documents and the other Loan Documents to which it is a party or by the consummation of the transactions contemplated by the Amendment Documents; and
(viii) an opinion of New York counsel and Colorado counsel, solely in respect of the Borrower and the MLP Parent Guarantor, covering the following matters, as applicable: power, authorization and execution, capacity, enforceability, non-contravention (corporate, contractual and legal), governmental approval, compliance with margin regulations and the Investment Company Act, and creation and perfection of the liens and security interests created by the Security Documents in form and substance reasonably satisfactory to respect of the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets Additional Units (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”as defined below)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;.
(db) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay evidence that all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required Underlying Equity owned by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender any Group Entity (other than an Exiting Lenderthe Put Pledgor) that has signed this Fifth Amendment not presently on deposit in the Collateral Account (the “Additional Units”) shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter been deposited in the Collateral Account.
(c) All fees required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to paid on or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon before the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4First Amendment Effective Date, including, without limitation, the Agency Fee and fees and expenses of counsel to Administrative Agent and Lenders, shall promptly provide written notice to have been paid.
(d) Borrower shall have provided each Lender with a completed and executed Form G-3 issued by the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingFederal Reserve System.
Appears in 1 contract
Sources: Loan Agreement (Rentech, Inc.)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the date each of Amendment Effective Date when, and only when, the following conditions precedent has have been satisfied:
(a) The Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment (which may shall be by telecopy originals or other electronic transmission) copies unless otherwise specified, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) duly authorized officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each signing Loan Party, each dated as of the Fifth Amendment Effective Date and executed by an appropriate officer(or, which shall (A) certify in the resolutions or other action authorizing case of certificates of governmental officials, a recent date before the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of Date) and each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets :
(▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, togetheri) executed counterparts of this Amendment executed by the Original Required Lenders, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLPNew Lenders, the Borrower and their subsidiaries the Agent;
(ii) certified copies of the resolutions of the board of directors or equivalent governing body of each Loan Party approving the Amendment Transactions, this Amendment, the Second Amended and Restated Credit Agreement and each other Loan Document to which it 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 Amendment Transactions, this Amendment, the Second Amended and Restated Credit Agreement and each other Loan Document to which it is a party;
(iii) a copy of the certificate of the Secretary of State of the jurisdiction of incorporation or formation, as the case may be, of each Loan Party, dated a recent date before the Amendment Effective Date, certifying (A) as to a true and correct copy of the charter, article of formation, or such other constitutive document on file in such Secretary’s office and (B) that (1) such Loan Party has paid all franchise taxes to the date of such certificate and (2) such Loan Party is duly incorporated or formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of incorporation or formation;
(iv) a certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President and its Secretary, any Assistant Secretary or a duly authorized person, dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of the Amendment Effective Date), certifying as to (A) the absence of any amendments to the charter or applicable constitutive documents of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 4(a)(iii) above, (B) a true and correct copy of the bylaws, limited liability company agreement, or partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section 4(a)(ii) above were adopted and on the Amendment Effective Date and (C) the due incorporation or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership organized or formed under the laws of the jurisdiction of its incorporation or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party;
(v) a certificate of the Secretary, an Assistant Secretary or a duly authorized person of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(vi) a certificate signed by a Responsible Officer, or a duly authorized person, of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) of the Second Amended and Restated Credit Agreement have been satisfied;
(vii) certificates attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis) are solvent;basis before and after giving effect to the Amendment Transactions, from its chief financial officer.
(dviii) Notes executed by the Borrower in favor of each Lender that has requested Notes at least 2 Business Days prior to the Amendment Effective Date; and
(ix) the Administrative Agent has received opinions executed opinion of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties Parties, addressed to the Agent and each Lender, substantially as to the matters set forth, mutatis mutandis, in Exhibit H to the Original Credit Agreement.
(b) The New Lenders shall have received, to the extent requested, on or before the date which is two (2) Business Days prior to the Amendment Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including the PATRIOT Act.
(c) (x) Any fees, costs and expenses required to be paid on or before the Amendment Effective Date to the Agent or any Arranger
(i) pursuant to any fee or engagement letters or (ii) local counsel in each jurisdiction applicable otherwise for which invoices have been received at least one Business Day prior to the transactions contemplated by Amendment Effective Date, (y) an amendment fee to each Original Lender that has executed this Fifth Amendment and as reasonably requested by the Administrative AgentAmendment Effective Date in an aggregate amount equal to 0.375% of such Original Lender’s Revolving Credit Commitment immediately prior to the Amendment Effective Date (the “Original Commitment”) and (z) a fee to each applicable Revolving Lender that has provided new commitments under the Revolving Facility in an amount equal to 0.50% of the amount of such Lender’s Revolving Credit Commitment on the Amendment Effective Date in excess of such Lender’s Original Commitment, in each case in form shall have been paid.
(d) Unless waived by the Agent, the Borrower shall have paid all reasonable fees, charges and substance acceptable disbursements of counsel to the Administrative Agent and its counsel;
(edirectly to such counsel if requested by the Agent) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition extent invoiced at least one Business Day prior to the MLP’sAmendment Effective Date, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects on and as plus such additional amounts of such date (unless such representations fees, charges and warranties specifically refer to an earlier date, in which case such representations and warranties disbursements as shall be true and correct in all material respects as constitute its reasonable estimate of such earlier date)fees, charges and disbursements incurred or to be incurred by it through the closing and customary post-closing proceedings included in such invoices (ii) no Default or Event provided, that such estimate shall not thereafter preclude a final settling of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment accounts between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;).
(he) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein The conversions, payments and (ii) paid funds sufficient to pay any filing or recording tax or fee repayments specified in connection with the filing of such amendments to the applicable MortgagesSection 6 below shall have been completed and made, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;as applicable.
(if) the The Administrative Agent shall have received (on behalf satisfactory evidence that all outstanding indebtedness of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders Loan Parties under the Loan Documents; andExisting Senior Notes shall have been redeemed, defeased and repaid in full prior to or substantially concurrently with the occurrence of the Amendment Effective Date.
(jg) The Borrower shall have received, substantially simultaneously with the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality occurrence of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender Amended Effective Date (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions each other condition set forth in this Section 4), gross cash proceeds of not less than $600,000,000 from the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer issuance of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingSenior Notes.
Appears in 1 contract
Sources: Amendment Agreement
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each of the following conditions precedent has been satisfiedTHIS AMENDMENT SHALL BE DEEMED EFFECTIVE AS OF THE FIRST DATE (SUCH DATE BEING REFERRED TO HEREIN AS THE “SECOND AMENDMENT EFFECTIVE DATE”) ON WHICH ALL OF THE FOLLOWING CONDITIONS PRECEDENT HAVE BEEN SATISFIED OR WAIVED IN WRITING:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) ’s receipt of the Credit Agreement following, in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and number as reasonably requested by the Administrative Agent,, each of which shall be original, or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Second Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Second Amendment Effective Date) and each case in form and substance acceptable satisfactory to the Administrative Agent and its counseleach of the Lenders:
(I) executed counterparts of this Amendment from each of the Loan Parties, the Administrative Agent and each of the Lenders;
i. such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(eII) all governmental such documents and third party consents certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of organization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the transactions contemplated herebyextent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
i. a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the obtaining execution, delivery and performance by each Loan Party, and the validity against each Loan Party, of the Loan Documents to which it is a condition to the MLP’sparty, the Borrower’s or their affiliates’ funding obligations under the Credit Agreementand such consents, have been obtained licenses and approvals shall be in full force and effect;, or (B) stating that no such consents, licenses or approvals are so required; and
(fIII) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v1) no action, suit, investigation or proceeding is pending or, to the knowledge of such officerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority by that (A) challenges the validity or against enforceability of this Amendment, the BorrowerExisting Credit Agreement, the Amended Credit Agreement, any Guarantor, the MLP’s general partner, other Loan Document or any of their respective properties that the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect;, (2) since December 31, 2021, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect and (3) no Default or Event of Default has occurred and is continuing under the Existing Credit Agreement.
(ga) the Borrower has paid (i) fees At least five Business Days prior to the ArrangersSecond Amendment Effective Date, the Administrative Agent (on behalf of itself and the LendersLenders shall have received documentation and other information with respect to each of the Loan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and other fees regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
i. Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and expenses due disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) prior to or on the Second Amendment Effective Date, plus such additional amounts of such fees, charges and payable pursuant disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to any fee letters applicable to this Fifth Amendment be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers). Without limiting the generality of the provisions of Article IX the last paragraph of Section 9.03 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, 3 each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Upon satisfaction of the following, the effective date of this Amendment shall not be November 9, 2001 (the "Effective Date"). This Amendment shall become effective until the date each of the following conditions precedent has been satisfied:
when, and only when, (a) the Administrative Agent has Noteholder shall have received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) all of the Credit Agreement following documents, each (unless otherwise indicated) being dated the date hereof, in the amount of such Lender’s Commitment as indicated on Schedule 2.01 form and substance satisfactory 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;Noteholder:
(c) the Administrative Agent has received (i) a certificate executed originals of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as Consent of the Fifth Amendment Effective Date or contain appropriate attachmentsGuarantors, 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, attached hereto;
(ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth duly executed Credit Agreement Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) Noteholder under which all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, conditions have been obtained satisfied and shall be that is in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31an executed allonge to the Note in the form of Exhibit D hereto, 2015, there has been no event or circumstance that has or could reasonably be expected and otherwise acceptable to have a Material Adverse Effect, the Noteholder;
(iv) there is no litigation, investigation or proceeding known to and affecting executed originals of the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Equity Appreciation Rights Agreement, and in the form of Exhibit E hereto;
(v) no actionexecuted originals of the Letter Agreement, suit, investigation or proceeding is pending or, in form and substance satisfactory to the knowledge of such officerNoteholder, threatened in any court or before any arbitrator or Governmental Authority by or against between the Borrower, any Guarantor, Company and the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse EffectNoteholder;
(gvi) the Borrower has paid (i) fees executed originals of an amendment to the ArrangersSenior Debt Intercreditor Agreement, the Administrative Agent (on behalf of itself in form and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses substance acceptable to the extent invoiced prior to closingNoteholder;
(hvii) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein a duly executed letter from General Electric Capital Corporation, in form and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments substance acceptable to the applicable MortgagesNoteholder, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) confirming that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in the securitization agreement with the Company have been satisfied;
(viii) certified copies of the resolutions of the Board of Directors of the Company authorizing this Section 4, Amendment and the Administrative Agent shall promptly provide written notice transactions contemplated thereby;
(ix) a certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers authorized to sign this Amendment on behalf of the Company and any other documents to be delivered by the Company hereunder;
(x) the opinions of counsel to the BorrowerCompany and the Guarantors containing such opinions and in form and substance acceptable to the Noteholder and its counsel; and
(xi) such other documents, instruments, approvals or opinions as the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingNoteholder may reasonably request.
Appears in 1 contract
Sources: Note Agreement (Cone Mills Corp)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of this Agreement and the date obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the The Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) ’s receipt of the Credit Agreement following, each of which shall be originals, email (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed (if applicable) by a Responsible Officer of the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each signing Loan Party, each dated as the Closing Date (or, in the case of certificates of governmental officials, the Fifth Amendment Effective Date Borrower’s Instruction Certificate and executed by an appropriate officerthe Borrower Remittance Instructions, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Closing Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, ▇▇▇▇▇ Fargo Securitieseach Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) in each case, LLC and RBC Capital Markets solely with respect to Collateral required to be granted on the Closing Date, a pledge agreement (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, togethertogether with each joinder and/or amendment delivered pursuant to Section 6.12(a) or otherwise, the “ArrangersPledge Agreement”), duly executed by the applicable Grantors, together with:
(A) certifying thatcertificates or instruments, after giving pro forma effect if any, representing the Collateral pledged thereunder accompanied by all endorsements and/or powers required by the Pledge Agreement,
(B) evidence that (x) all proper financing statements have been or contemporaneously therewith will be duly filed under the Uniform Commercial Code of all applicable jurisdictions and (y) all applicable perfection requirements that the Administrative Agent reasonably may deem necessary or desirable in order to this Fifth Amendmentperfect the Liens created under the Pledge Agreement, covering the MLPCollateral described in the Pledge Agreement,
(C) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Grantor as debtor, together with (x) copies of such other financing statements and (y) if any such financing statement covers Collateral, termination statements (or similar documents) for filing in all applicable jurisdictions as may be necessary to terminate any such effective financing statements (or equivalent filings), and
(D) evidence that all other actions, recordings and filings that the Borrower and their subsidiaries (on a consolidated basis) are solventAdministrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Pledge Agreement have been taken;
(div) a duly completed Borrower’s Instruction Certificate executed by a Responsible Officer of the Borrower, together with such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent has received opinions 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;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of (iA) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ L.L.P.LLC, special Maryland and Delaware counsel to the Loan Parties and (iiB) local Backenroth ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special New York counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by Loan Parties, addressed to the Administrative Agent, in the L/C Issuer and each case in form Lender, as to such matters concerning the Loan Parties and substance acceptable to the Administrative Agent and its counselLoan Documents as the Required Lenders may reasonably request;
(evii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all governmental consents, licenses and third party consents approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to the transactions contemplated hereby, the obtaining of which it is a condition to the MLP’sparty, the Borrower’s or their affiliates’ funding obligations under the Credit Agreementand such consents, have been obtained licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(fviii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower (x) certifying that (i1) the representations conditions specified in Sections 4.02(a) 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) have been satisfied, (ii2) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance since January 28, 2021 that has had or could would reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v3) no action, suit, investigation or proceeding is pending or, to the knowledge of such officerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority by that (A) relates to this Agreement or against the Borrower, any Guarantor, the MLP’s general partnerother Loan Document, or any of their respective properties that could the transactions contemplated hereby or thereby, or (B) would reasonably be expected expected, either individually or in the aggregate, to have a Material Adverse EffectEffect and (y) attaching copies of the Organization Documents of each Person whose Equity Interests are included in the Collateral, if any, which Organization Documents shall (1) in the reasonable opinion of the Administrative Agent, permit the Administrative Agent to realize on such Collateral upon the occurrence and during the continuance of an Event of Default and (2) otherwise be in form and substance reasonably satisfactory to the Administrative Agent;
(gix) duly completed Borrower Remittance Instructions signed by a Responsible Officer of the Borrower;
(x) the Audited Financial Statements and the unaudited financial statements of the Borrower has paid referred to in Section 5.05(b);
(ixi) fees a fully completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower most recently ended as of the Closing Date ended for which financial statements of the Borrower are available, giving pro forma effect to the Arrangerstransactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date) and including in reasonable detail the calculations required to establish compliance with the covenants set forth in Section 7.11;
(xii) such other assurances, certificates, documents and consents as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid under any of the Loan Documents on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable under the Loan Documents and invoiced prior to or on behalf the Closing Date, plus such additional amounts of itself such fees, charges and disbursements payable under the Lenders) Loan Documents as shall constitute its reasonable estimate of such fees, charges and other fees and expenses due and payable pursuant disbursements incurred or to any fee letters applicable to this Fifth Amendment be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Arrangers and (ii) the Administrative Agent’s and ).
(d) Upon the Arrangers’ reasonable legal fees and expenses request of any Lender made at least ten (10) days prior to the extent invoiced prior to closing;
(h) Closing Date, the Borrower has (i) delivered an amendment shall have provided to each applicable Mortgage to extend such Lender, and such Lender shall be reasonably satisfied with, the maturity date described therein documentation and (ii) paid funds sufficient to pay any filing or recording tax or fee other information so requested in connection with applicable “know your customer” rules and regulations, Anti-Money-Laundering Laws, including, without limitation, the filing of such amendments PATRIOT Act, in each case at least five (5) days prior to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersClosing Date. Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not become effective --------------------------- and be deemed effective until as of the date hereof upon (a) the delivery of (i) duly executed originals of this Amendment from the Required Lenders, each Lender that has agreed to provide an "Additional Revolving Loan Commitment" as provided above on the effectiveness of this Agreement (each such Lender, an "Increasing ---------- Lender"), Gasboy, Tokheim-Sofitam, Sofitam Applications and the Company and (ii) ------ duly executed originals of a Reaffirmation in the form of Exhibit A attached --------- hereto from Tokheim Automation Corporation, Envirotronic Systems, Inc., Tokheim Investment Corp., Sunbelt Hose & Petroleum Equipment, Inc., Gasboy, Tokheim- Sofitam, Sofitam Applications, Management Solutions, Inc., Tokheim Equipment Corporation, and Tokheim RPS, LLC, (b) the payment of all the fees described in Section 4 below and any other fees payable by the Company in connection herewith --------- and (c) in the event that this Amendment is executed and delivered by the Required Lenders on or prior to 5:00 p.m. (Chicago time) on December 22, 1999, the delivery of each of the following conditions precedent has been satisfied:
documents (ai) (subject to the Administrative Agent has received parenthetical in clause (c)(ii) below) a counterpart Warrant Certificate, substantially in -------------- the form of this Fifth Amendment Exhibit B hereto (which may be by telecopy or other electronic transmission"Warrant Certificate"), for each Lender --------- ------------------- representing the right to purchase a number of shares of common stock, par value $1.00 per share, of the Company ("Common Stock"), determined as follows: (A) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable as ------------ to each Lender that has previously requested a promissory noteLender, as applicable, or that is requesting a promissory note pursuant its Percentage (prior to Section 2.09(agiving effect hereto) of the Credit Agreement in 1,516,212.01 shares of Common Stock plus (B) if such Lender is an Increasing Lender, its proportionate share (based upon the amount of such its "Additional Revolving Loan Commitment" as set forth opposite its signature hereto as an "Increasing Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c" divided by $10,000,000) the Administrative Agent has received (i) a certificate of each Loan Party, dated as 1,010,808 shares of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificatesCommon Stock, (ii) a good standing certificate for each Loan Party from its jurisdiction Warrant and Registration Rights Agreement, substantially in the form of incorporation or organization as Exhibit C hereto, --------- duly executed by the Company (it being understood that no Lender shall be ------------------------ entitled to receive any Warrant Certificate unless and until it shall have executed and delivered to the New Administrative Agent a counterpart of a recent date, such Agreement) and (iii) a certificate from opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), (y) Ice ▇▇▇▇▇▇, special Indiana counsel to the chief financial officer of Company and (z) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel to the Borrower and the MLP (Company, in each case in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the New Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.and, counsel as to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agentlegal matters, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Tokheim Corp)
Conditions of Effectiveness. This Fifth The effectiveness of this Amendment shall not be effective until the date each of is subject to the following conditions precedent has been satisfiedprecedent:
(a) the Administrative Agent has shall have received a counterpart counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) duly executed by (i) the Borrower, (ii) the MLPapplicable Issuing Banks, (iii) the other Loan PartiesSwingline Lender, (iv) the “Required Lenders” under and as defined in the Existing Credit Agreement, (v) the Required Lenders under the Amended Credit Agreement (after giving effect to the Funding Transactions), (vi) each New Lender and (vii) the Administrative Agent, and the Lenders;
(b) the Lenders shall have received (i) satisfactory audited consolidated financial statements of the Borrower for the three most recent fiscal years ended prior to the Amendment No. 3 Effective Date as to which such financial statements are available, (ii) satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph as to which such financial statements are available and (iii) subject to Section 9.12 of the Amended Credit Agreement, satisfactory financial statement projections through and including the Borrower’s 2025 fiscal year, together with such information as the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested the Lenders shall reasonably request (including, without limitation, a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) detailed description of the Credit Agreement assumptions used in the amount of preparing such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended herebyprojections); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has shall have received (i) a certificate of each Loan Party, dated by such time and date as required by Section 2.03 of the Fifth Amendment Effective Date and executed by an appropriate officerAmended Credit Agreement, which shall (A) certify a Borrowing Request in respect of any amounts to be borrowed or re-borrowed under the resolutions or other action authorizing Amended Credit Agreement on the executiondate hereof, delivery and performance of this Fifth Amendment and (Bii) certify that certain documents previously delivered to such documents, certificates, legal opinions and other deliveries as the Administrative Agent are or its counsel may reasonably request, including, without limitation, relating to the organization, existence and good standing (or the equivalent in full force and effect as the applicable jurisdiction) of the Fifth Amendment Effective Date or contain appropriate attachmentsLoan Parties, including the certificate or articles authorization of incorporation or organization or equivalent constitutional documents of each Loan Party certified the transactions contemplated hereby and by the relevant authority of Amended Credit Agreement and any other legal matters relating to the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws Parties, the Loan Documents or operatingthe transactions contemplated hereby or thereby, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (all in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(d) the representations and warranties of the Loan Parties set forth in the Amended Credit Agreement and each other Loan Document shall be true and correct in all material respects (or in all respects in the case of any representation or warranty qualified by materiality or Material Adverse Effect) on and as of the Amendment No. 3 Effective Date;
(e) no Default or Event of Default shall have occurred and be continuing;
(f) the Administrative Agent shall have a first priority perfected security interest in the Collateral, subject to Permitted Liens, as required by the Collateral Documents;
(g) no injunction or temporary restraining order exists and no litigation has commenced or is otherwise pending which would prohibit the effectiveness hereof or of the Amended Credit Agreement or the extension of any Loan or issuance, renewal or extension of any Letter of Credit thereunder;
(h) the Administrative Agent shall have received evidence that all governmental regulatory, legal and third other third-party consents to approvals necessary, or, in its reasonable discretion, advisable, in connection with this Amendment and the transactions contemplated hereby, Transactions and the obtaining continuing operations of which is a condition to the MLP’s, Borrower and the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, Restricted Subsidiaries shall have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the Credit Agreement are true and correct in Loan Parties shall have provided 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could information reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority requested by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant or by any Co-Syndication Agent upon written notice by such Co-Syndication Agent to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (iiAdministrative Agent) to allow such Co-Syndication Agent or the Administrative Agent’s Agent to conduct flood due diligence and the Arrangers’ reasonable legal fees and expenses flood insurance compliance with respect to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment any Mortgaged Real Property reasonably satisfactory to each applicable Mortgage to extend the maturity date described therein Co-Syndication Agent and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment Administrative Agent shall have received confirmation (which confirmation may be delivered via email) from each Co-Syndication Agent of such amountsthe foregoing;
(j) the Administrative Agent shall have received, (i) at least five days prior to the Amendment No. 3 Effective Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Amendment No. 3 Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Amendment No. 3 Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Amendment No. 3 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); and
(k) the Administrative Agent shall have received (on behalf of the Exiting Lendersx) funds necessary to pay all principal, interest, fees and other charges owed amounts due and payable on or prior to the Exiting Lenders Amendment No. 3 Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Amended Credit Agreement and the other Loan Documents; and
, (jy) all accrued and unpaid interest under the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting LenderAgreement and all accrued and unpaid fees under Sections 2.12(a) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreementand 2.12(b) of the conditions set forth in this Existing Credit Agreement and (z) all amounts (if any) owing by the applicable Lenders (including any New Lender) pursuant to Section 42(c). If any LC Disbursements and/or Swingline Loans are outstanding as of the Amendment No. 3 Effective Date, the such LC Disbursements and/or Swingline Loans shall be repaid, together with any interest accrued thereon. The Administrative Agent shall promptly provide written notice to notify in writing the Borrower, Borrower and the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth AmendmentAmendment No. 3 Effective Date, and such notice shall be conclusive and binding. For the avoidance of doubt, the parties hereto acknowledge and agree that (i) the Funding Transactions shall be deemed to have occurred immediately following the effectiveness of the amendments provided under Section 1(a) and (ii) the effectiveness of the Post-Funding Amendments shall be subject to (x) the effectiveness the amendments provided under Section 1(a) and (y) consummation of the Funding Transactions.
Appears in 1 contract
Conditions of Effectiveness. Section 3.1. This Fifth Amendment Waiver shall not be become effective until upon receipt by the date Lender of each of the following conditions precedent has been satisfiedfollowing, in form and substance satisfactory to the Lender and its counsel:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) Waiver, duly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, Companies and the LendersGuarantors;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as the Secretary of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall ED certifying: (A) certify that neither its Certificate of Incorporation nor By-laws has been amended since the date of their certification; (B) that attached thereto is a true and a complete copy of resolutions or other action adopted by the Board of Directors of ED authorizing the execution, delivery and performance of this Fifth Amendment the Guaranty, the Security Agreement and each other Loan Document to which it is a party; and (BC) certify that certain documents previously delivered the incumbency and specimen signature of each officer of ED executing each Loan Document to which it is a party and any certificates or instruments furnished pursuant hereto, and a certification by another officer of ED as to the Administrative Agent are in full force incumbency and effect as signature of the Fifth Amendment Effective Date or contain appropriate attachmentsSecretary, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party and together with certified by the relevant authority copies of the jurisdiction Certificate of organization Incorporation and By-laws of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, ED;
(iic) a certificate of good standing certificate for each Loan Party ED from its jurisdiction the Secretary of incorporation or organization the State of Delaware, dated as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) an Officer's Certificate, substantially in the Administrative Agent has received opinions form of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Exhibit 1 attached hereto, counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested duly executed by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counselCompanies;
(e) all governmental and third party consents a Joinder Agreement, substantially in the form of Exhibit 2 attached hereto, duly executed by ED, together with (i) a Schedule A to the transactions contemplated hereby, the obtaining of which is Security Agreement completed with respect to ED and (ii) UCC-1 financing statements in a condition form acceptable to the MLP’s, Lender for such jurisdictions as the Borrower’s or their affiliates’ funding obligations under Lender determines are necessary to perfect the Credit Agreement, have been obtained and shall be in full force and effectliens created by the Security Agreement with respect to ED;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer favorable opinion of counsel for ED dated as of the Borrower certifying that (i) the representations and warranties contained in Article V date hereof, as required pursuant to Section 6.14 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) a certificate of insurance from an independent insurance broker confirming the Borrower has paid (i) fees insurance required to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable be maintained pursuant to any fee letters applicable Section 6.01 of the Credit Agreement with respect to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;ED; and
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents documents, instruments, agreements, approvals, opinions and evidence as the Lender may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingrequire.
Appears in 1 contract
Sources: Credit Agreement (Eon Labs Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until the date each upon satisfaction of the following conditions precedent has been satisfiedprecedent:
(ai) the Administrative Agent has shall have received a counterpart four (4) copies of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrowerall Credit Parties and Lenders.
(ii) Each document (including, the MLPwithout limitation, the other Loan Partiesany Uniform Commercial Code financing statement) required by this Amendment or under law or reasonably requested by Agent to be filed, the Administrative registered or recorded in order to create, in favor of Agent, and a perfected security interest in or lien upon the LendersCollateral owned by Ontario Inc. shall have been delivered to Agent;
(biii) Agent shall have received a copy of the resolutions in form and substance reasonably satisfactory to Agent, of the Board of Directors of (A) Ontario Inc. authorizing
(1) the Administrative execution, delivery and performance of this Amendment and the pledge agreement executed by Ontario Inc. in favor of Agent has received an amended in connection herewith, 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(2) the granting by Ontario Inc. of the Credit Agreement in continuing security interest upon the amount Collateral, certified by the Secretary or an Assistant Secretary of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan PartyOntario Inc., dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall date of this Amendment; (AB) certify the resolutions or other action SISC authorizing the execution, delivery and performance of this Fifth Amendment the amendment to the pledge agreement with respect to the pledge of the stock of ▇.▇. ▇▇▇▇▇▇ and the pledge agreement executed by SISC in favor of Agent in connection with the pledge of the Units; and (BC) certify A & H Holding authorizing the execution, delivery and performance of the pledge agreements executed by A & H Holding in favor of Agent in connection with the pledge of the Units and pledge of the stock of Ontario Inc. and, each such certificate shall state that certain documents previously delivered to the Administrative Agent are in full force resolutions thereby certified and effect have not been amended, modified, revoked or rescinded as of the Fifth date of such certificate;
(iv) Agent shall have received a certificate of the Secretary or an Assistant Secretary of Ontario Inc., dated the Joinder, Consent and Amendment No. 1 Agreement Effective Date or contain appropriate attachmentsDate, including as to the incumbency and signature of the officers of Ontario Inc. executing this Amendment, any certificate or articles other documents to be delivered by it pursuant hereto, together with evidence of incorporation the incumbency of such Secretary or organization Assistant Secretary;
(v) Agent shall have received a copy of the Articles or equivalent constitutional documents Certificate of each Loan Party Incorporation of Ontario Inc., and all amendments thereto, certified by the relevant authority Secretary of the jurisdiction State or other appropriate official of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer together with copies of the Borrower By-Laws of Ontario Inc. and all agreements of Ontario Inc.'s shareholders certified as accurate and complete by the MLP Secretary of Ontario Inc.;
(vi) Agent shall have received good standing certificates for Ontario Inc. dated not more than 30 days prior to the Joinder, Consent and Amendment No. 1 Agreement Effective Date, issued by the Secretary of State or other appropriate official of Ontario Inc.'s jurisdiction of incorporation and each jurisdiction where the conduct of Ontario Inc.'s business activities or the ownership of its properties necessitates qualification;
(vii) Agent shall have received in form and substance reasonably satisfactory to Agent, certified copies of Ontario Inc.'s liability insurance policies, together with endorsements naming Agent as a co-insured;
(viii) Agent shall have received the Administrative Agentexecuted opinions of counsel from the law firm of ▇▇▇▇▇▇, ▇▇▇▇▇ Fargo Securities, LLC & Bockius and RBC Capital Markets (▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) & ▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.in form and substance satisfactory to Agent, counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable which shall cover such matters incident to the transactions contemplated by this Fifth Amendment and the Contribution Agreement;
(ix) Agent shall have received an agreement from the Partnership subordinating the pledge of the Partnership Units to the pledge of such Units in favor of Agent and such other certificates, instruments, documents and agreements as may reasonably requested be required by Agent or its counsel, including but not limited to the Administrative AgentContribution Agreement, in the Amended and Restated Agreement of Limited Partnership of GC-SUN Holdings, L.P., subordinated pledge agreements, intercompany transaction documents, Management Agreements, fee agreements, Registration Rights Agreement and payment direction letter by SISC to the Partnership re: payment of intercompany indebtedness, each case of which shall be in form and substance acceptable satisfactory to the Administrative Agent and its counsel;
(ex) all governmental and third party consents Agent shall have received payment in the amount of at least $105,000,000 (the "Proceeds") to be applied against the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effectRevolving Advances;
(fxi) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf i) fully executed Pledge Agreements: (t) by SISC and A&H Holding, in favor of Agent pledging each of SISC's and A&H Holdings' Units in the Exiting LendersPartnership to Agent, (y) funds necessary by A & H Holding in favor of Agent pledging the common stock of Ontario Inc. to pay all principal, interest, fees Agent and other charges owed (z) by Ontario Inc. in favor of Agent pledging the common stock of ▇.▇. ▇▇▇▇▇▇ (Canada) Limited to Agent and (ii) a fully executed amendment to the Exiting Lenders under Pledge Agreement by SISC in favor of Agent which provides for the Loan Documentspledging the stock of A & H Holding; and
(jxii) the Administrative Agent has shall have received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality a fully executed Collateral Assignment of the provisions rights of Article IX of SunSource, A & H Holding, SunSource Corporate and SISC under the Credit Contribution Agreement, for purposes of determining compliance with the conditions specified in this Section 4Management Agreement between GC-Sun Holdings II, each Lender L.P. (other than an Exiting Lender"Holdings II") that has signed this Fifth Amendment shall be deemed to have consented toand SunSource Corporate and the Transaction Fee Letter among Holdings II, approved or accepted or be satisfied with, each document or other matter required under this Section 4the Partnership and SunSource (the "Collateral Assignment"), in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or form and substance satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingAgent.
Appears in 1 contract
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Sunsource Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the first date (such date being referred to as the “Amendment No. 4 Effective Date”, which date is June 26, 2024), when each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has shall have received a counterpart (i) counterparts of this Fifth Amendment duly executed and delivered by (which may be by telecopy or other electronic transmissionA) executed by the Borrower, the MLP, the other Loan Parties, (B) the Administrative Agent, (C) each Lender (including each Incremental Lender), L/C Issuer and the Lenders;
Swing Line Lender and (bD) the Administrative Agent has received an amended Exiting Lender and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction fully executed copy of incorporation or organization as of a recent datean amendment to the Relative Rights Agreement, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (which shall be in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;.
(db) the The Administrative Agent has shall have received opinions a favorable opinion of each of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.LLP, special New York counsel to the Loan Parties, (ii) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, special Tennessee counsel to the Loan Parties and (iiiii) local ▇▇▇▇▇ Law Firm, special New Mexico counsel to the Loan Parties, in each jurisdiction applicable case, addressed to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in the Collateral Agent and each case Lender, dated as of the Amendment No. 4 Effective Date and in form and substance acceptable reasonably satisfactory to the Administrative Agent and its counsel;Agent.
(ec) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) Receipt by the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that following:
(i) the representations and warranties contained in Article V copies of the Credit Agreement are Organization Documents of each Loan Party certified to be true and correct in all material respects on and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such date (unless such representations and warranties specifically refer Loan Party to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of the Amendment No. 4 Effective Date (or, in the alternative, a certification by a Responsible Officer that no modifications to the Organization Documents delivered on the Original Closing Date or thereafter have occurred since such earlier date), ;
(ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as copies of such datecertificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably request prior to the Amendment No. 4 Effective Date evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party; and
(iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge copies of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, documents and certifications as the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses may reasonably request prior to the extent invoiced prior Amendment No. 4 Effective Date to closing;evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(hd) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the The Administrative Agent shall have received (on behalf i) searches of Uniform Commercial Code filings, tax and judgment liens in the jurisdiction of formation of each Loan Party, the jurisdiction of the Exiting Lenderschief executive office of each Loan Party where a filing would need to be made in order to perfect the Collateral Agent’s security interest in the Collateral, copies of the financing statements or other liens on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and Liens to be released substantially concurrently with the consummation of the Transaction, and (ii) funds necessary to pay all principalsearches of ownership of, interestand ▇▇▇▇▇ on, fees and other charges owed intellectual property of each Loan Party (in each case, to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be extent reasonably required requested by the Administrative Agent or Collateral Agent) in the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender appropriate governmental offices.
(other than an Exiting Lendere) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the The Administrative Agent shall promptly provide written notice have received a certificate executed by a Responsible Officer of the Administrative Borrower as of the Amendment No. 4 Effective Date, substantially in the form of Exhibit Q to the Borrower, ABL Credit Agreement regarding the Lenders (including Solvency of Parent and its Subsidiaries on a consolidated basis and immediately after giving effect to the Exiting Lenders) and L/C Issuer consummation of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.transactions contemplated hereby on the Amendment No. 4
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of this Agreement and the date each occurrence of the Closing Date are subject to satisfaction (or waiver by the Administrative Agent) of the following conditions precedent has been satisfiedon or prior to the Closing Date:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) following, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) Responsible Officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such signing Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement by each Borrower and the Administrative Agent;
(ii) a Note (or Notes) executed by each Borrower and dated the Closing Date in favor of each Lender requesting a Note (or Notes);
(iii) the Guaranty, dated as of the Closing Date, duly executed by each Guarantor;
(iv) the U.S. Security Agreement, dated as of the Closing Date, duly executed by each U.S. Loan Party, together with:
(A) agreed forms of Uniform Commercial Code financing statements (Form UCC-1), naming each of the U.S. 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 U.S. Loan Party;
(D) lien search results covering the U.S. 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) [reserved];
(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 (a) ▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& ▇▇▇▇▇▇▇ Fargo SecuritiesLLP, LLC and RBC Capital Marketscounsel to the Loan Parties, together, the “Arrangers”)(b) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇▇▇▇▇▇, LLP, Alaska counsel to the Loan Parties and (iic) local ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as Canadian counsel to the Loan Parties, in each jurisdiction applicable case, addressed to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(eix) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Top Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (ib) the representations have been satisfied, 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), (iiB) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably be expected to have a Material Adverse Effecthave, (iv) there is no litigationeither individually or in the aggregate, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(gi) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers Audited Financial Statements and (ii) unaudited consolidated balance sheet of the Administrative Agent’s Top Borrower and its Restricted Subsidiaries dated as of March, 31, 2024, June 30, 2024 and September 30, 2024, and the Arrangersrelated consolidated statements of income or operations, shareholders’ reasonable legal fees equity and expenses to cash flows for the extent invoiced prior to closingfiscal quarters ended on these dates (“Unaudited Financial Statements”);
(hxi) solvency certificate from the chief financial officer or another officer with equivalent duties of the Top Borrower has (i) delivered an amendment to each applicable Mortgage to extend certifying that the maturity date described therein Top Borrower and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments its Subsidiaries, on a consolidated basis, after giving effect to the applicable Mortgagestransactions contemplated hereby, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documentsare Solvent; and
(jxii) the Administrative Agent has received such Loan Parties shall have provided or caused to be provided the documentation and other documents as may be information to the Lenders that are reasonably required by the Administrative Agent 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 ArrangersLenders, as applicable, have reasonably requested such items in writing at least 10 Business Days prior to the Closing Date.
(b) All fees and expenses (including, without limitation, legal fees and expenses) required to be paid by (or on behalf of) the Borrowers to the Administrative Agent, the Arrangers and the Lenders on or before the Closing Date shall have been paid in full. Without limiting the generality of the provisions of Article IX of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Pursuit Attractions & Hospitality, Inc.)
Conditions of Effectiveness. This Fifth The effectiveness of this Amendment shall not be effective until on the date each of Amendment No. 2 Effective Date is subject to the following conditions precedent has been satisfied:
that (ai) the Administrative Agent has shall have received a counterpart counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) duly executed by the BorrowerCompany, the MLP, the other Loan Parties, the Administrative Agent, Banks and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificatesAgent, (ii) a copy of the Restated Articles of Incorporation of the Company, together with all amendments, certified by the Secretary or an Assistant Secretary of the Company, and a certificate of good standing certificate for each Loan Party from standing, certified by the appropriate governmental officer in its jurisdiction of incorporation or organization as of a recent dateincorporation, and (iii) a certificate from copies, certified by the chief financial officer Secretary or an Assistant Secretary of the Borrower Company, of its bylaws and of its Board of Directors’ resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for the Bank) authorizing the execution of this Amendment, (iv) an incumbency certificate, executed by the Secretary or an Assistant Secretary of the Company, which shall identify by name and title and bear the original or facsimile signature of the officers of the Company authorized to sign the Amendment and the MLP (in form and substance reasonably satisfactory officers or other employees authorized to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations make borrowings under the Credit Agreement, have been obtained and upon which certificate the Bank shall be entitled to rely until informed of any change in full force and effect;
writing by the Company, (fv) the Administrative Agent has received a certificate certificate, signed by a Responsible Designated Officer of the Borrower certifying Company, stating that on the Amendment No. 2 Effective Date (i) 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), (iia) no Default or Event of Default has occurred and is continuing under and (b) each representation or warranty contained in Article V of the Credit Agreement as of such dateis true and correct, (iiivi) since December 31an opinion letter of (a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 2015Esq., there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting Assistant General Counsel of the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, Company and (vb) no actionSidley Austin LLP, suitcounsel for the Agent, investigation or proceeding is pending or, to in each case covering substantially the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against same matters as the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee corresponding opinion letter issued in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent Credit Agreement and the Arrangers for payment of such amounts;
(ivii) the Administrative Agent shall have received (on behalf payment and/or reimbursement of the Exiting Lenders) funds necessary Agent’s and its affiliates’ fees and expenses (including, to pay all principal, interestthe extent invoiced, fees and other charges owed to expenses of counsel for the Exiting Lenders under the Loan Documents; and
(jAgent) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance in connection with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth The effectiveness of this Second Amendment shall not be effective until (including the date each amendments contained in Section 1 hereof and agreements contained in Section 2 hereof) are subject to the satisfaction of the following conditions precedent has been satisfied:(the date of satisfaction of such conditions being referred to herein as the “Second Amendment Effective Date”):
(a) the Administrative Agent has received a counterpart of this Fifth Second Amendment (which may be by telecopy or other electronic transmission) shall have been duly executed by the Borrower, the MLPeach Guarantor, the other Loan PartiesLenders, the Administrative AgentIncremental Lenders, the Facility Agent and the Security Trustee (which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the LendersFacility Agent;
(b) a duly executed original of a Guarantor Accession Agreement made between the Administrative Agent has received an amended Additional Guarantor 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 noteFacility Agent;
(c) the Administrative Facility Agent has shall have received a Borrowing Request in respect of the Loans under this Second Amendment by no later than the applicable time required pursuant to Section 2.3 of the Credit Agreement (or such shorter period as may be agreed by the Facility Agent);
(d) the Facility Agent shall have received (i) a certificate of each Loan Party, dated as an officer or an officer of the Fifth sole member, as the case may be, of each Security Party dated the Second Amendment Effective Date and executed by an appropriate officerDate, which shall certifying (A) certify either (i) that attached thereto is a true and complete copy of each Organizational Document of such Security Party, or (ii) that the copies of such Security Party’s Organizational Documents as previously certified and delivered to the Facility Agent on the Closing Date (or, if later, the date of joinder of such Security Party as a Guarantor under the Loan Documents) remain in full force and effect on the Second Amendment Effective Date, without modification or amendment since such prior date of certification and delivery, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or other action sole member of such Security Party authorizing the execution, delivery and performance of this Fifth Second Amendment and the other Loan Documents (Bincluding, if applicable, as amended by this Second Amendment) certify to which such Security Party is a party and, in the case of the Borrower, the borrowing of the Loans hereunder, and that certain documents previously delivered to the Administrative Agent such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as of to the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents incumbency and specimen signature of each officer executing this Second Amendment and any Loan Party certified by the relevant authority of the jurisdiction of organization Document or any other document delivered in connection herewith or therewith on behalf of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificatesSecurity Party, (ii) a good standing certificate for as to the goodstanding of each Loan Security Party from as of a date reasonably near to the Second Amendment Effective Date certifying that each Security Party is duly formed and in goodstanding under the laws of its jurisdiction of incorporation or organization as of a recent date, and (iii) an original or certified copy power of attorney under which any Loan Document is executed on behalf of a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventSecurity Party;
(de) the Administrative Facility Agent has received opinions shall have received, on behalf of itself and the other Finance Parties, a favorable written opinion of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇▇ LLP, counsel to for the Loan Parties Facility Agent and the other Finance Parties, (ii) local ▇▇▇▇ ▇▇▇▇▇ LLP, counsel in each for the Security Parties, and (iii) any other legal advisors on matters of the law of such jurisdiction applicable to as the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentFacility Agent may require, in each case in form and substance acceptable (A) dated the Second Amendment Effective Date (or such other date agreed by the Facility Agent), (B) addressed to the Administrative Facility Agent and its counsel;
the other Finance Parties and (eC) all governmental covering customary matters for incremental loan facilities relating to this Second Amendment and third party consents to the transactions contemplated hereby, other Loan Documents delivered in connection with this Second Amendment as the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and Facility Agent shall be in full force and effectreasonably request;
(f) at least one Business Day (solely for purposes of this Section 4, to be defined as any day other than a Saturday, a Sunday or a day on which the Administrative Federal Reserve Bank of New York is closed) prior to the Second Amendment Effective Date, each Security Party shall have provided to the Facility Agent has received the documentation and other information required by bank regulatory authorities under or in respect of applicable “know-your-customer” requirements, including the PATRIOT Act;
(g) on or prior to the Second Amendment Effective Date, the Borrower shall have paid to the Facility Agent for the account of each Incremental Lender with Incremental Commitments a certificate signed fee equal to 1.25% of the aggregate amount of such Incremental Lender’s Commitments in effect on the Second Amendment Effective Date;
(h) the Borrower shall have paid all other costs, fees, expenses and other amounts due and payable pursuant to the Loan Documents and in connection with this Second Amendment;
(i) a copy of the memorandum of agreement (together with all amendments and addenda thereto) for the Additional Vessel duly executed by a Responsible Officer the Additional Guarantor who will be the owner thereof, and the relevant seller, together with evidence of any address or similar commission arrangements, all of which shall be of terms acceptable to the Facility Agent (certified by an officer of the Borrower certifying that or such Additional Guarantor to be a true, correct and complete copy thereof);
(j) two valuations dated respectively September 30, 2018 and October 8, 2018, addressed to the Borrower or the Facility Agent (at the expense of the Borrower) by an Approved Broker indicating the Fair Market Value of the Additional Vessel;
(k) a duly executed original of (i) an amendment to the representations Membership Interest Pledge and warranties contained (ii) an Account Pledge with respect to the Additional Guarantor who will be the owner of the Additional Vessel, and of any documents required to be delivered thereunder;
(l) upon the request of any Incremental Lender made through the Facility Agent, a promissory note executed and delivered to the order of such Incremental Lender in Article V the form of Exhibit L attached to the Credit Agreement, or any other form approved by the Facility Agent;
(m) the conditions precedent set forth in Section 4.03 and Section 4.04 of the Credit Agreement are in relation to the Additional Vessel and the Additional Guarantor who will be the owner thereof shall have been satisfied (or waived in writing by the Facility Agent with the consent of the Incremental Lenders);
(n) the Facility Agent shall have received in form approved by the Facility Agent an amendment to each Vessel Mortgage duly executed by the owner of the relevant Vessel reflecting this Second Amendment, and evidence that such amendment has been duly recorded in accordance with the Laws of the Approved Flag;
(o) evidence that the Additional Guarantor who will be the owner of the Additional Vessel has duly opened an Operating Account and has delivered to the Facility Agent all resolutions, signature cards and other documents or evidence required in connection with the opening, maintenance and operation of such accounts with the Account Bank;
(p) evidence that, if the tests set out in Article VII or Section 5.04 of the Credit Agreement were applied immediately following the making of the relevant Borrowing, the Borrower would not be obliged to provide additional security or repay part of the Borrowings as therein provided (determined on the basis of the most recent valuation for each Vessel delivered pursuant to Section 5.03 of the Credit Agreement); and
(q) (i) all representations and warranties set forth in Section 3 of this Second Amendment shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the Second Amendment Effective Date with the same effect as though made on and as of such date (unless date, except to the extent such representations and warranties specifically refer expressly relate to an earlier date, date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date), ) and (ii) no Default or Event of Default has shall have occurred and is be continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, would occur after giving effect to the knowledge incurrence of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected Loans pursuant to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself this Second Amendment and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf application of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproceeds therefrom.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this amendment and restatement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or telecopies (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the MLPRestatement Effective Date (or, in the other Loan Partiescase of certificates of governmental officials, a recent date before the Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent, the Syndication Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the LendersBorrower;
(bii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent has received an amended may require evidencing the identity, authority and restated promissory note payable capacity of each Responsible Officer thereof authorized to each Lender that has previously requested act as a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of Responsible Officer in connection with this Agreement and 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 noteother Loan Documents;
(civ) such documents and certifications as the Administrative Agent has received may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in the state of Nevada.
(iv) favorable opinions of the General Counsel of the Borrower and of O’Melveny & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate of each Loan Party, dated as a Responsible Officer of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall Borrower either (A) certify the resolutions or other action authorizing attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, validity against the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable Documents to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which it is a condition to the MLP’sparty, the Borrower’s or their affiliates’ funding obligations under the Credit Agreementand such consents, have been obtained licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required, other than, in the case of either clause (A) or (B), any such consents, licenses or approvals under applicable Gaming Laws which are not required to be obtained on or prior to the Restatement Effective Date, which consents, licenses or approvals the Borrower will seek in due course after the Restatement Effective Date;
(fvii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (ib) 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 have been satisfied; (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), (iiB) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, ; and (ivC) there is no litigation, investigation or proceeding known the current Debt Ratings and a calculation of the Debt to and affecting Capitalization Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Restatement Effective Date; and
(viii) such other assurances, certificates, documents, consents or any affiliate for which opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Restatement Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower is required shall have paid all fees, charges and disbursements of counsel to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;or on the Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(hd) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent The Restatement Effective Date shall have received (occurred on behalf of the Exiting Lenders) funds necessary to pay all principalor before June 30, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers2009. Without limiting the generality of the provisions of Article IX of the Credit AgreementSection 9.04, for purposes of determining compliance with the conditions specified in this Section 44.01 , each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Eleventh Amendment shall not be effective until the date (such date, the “Eleventh Amendment Effective Date”) each of the following conditions precedent has been satisfiedsatisfied in full:
(a) the Administrative Agent has received a counterpart of this Fifth Eleventh Amendment executed by each of the parties hereto (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders);
(b) the Administrative Agent has received a Guaranty and Subsidiary Security Agreement executed by MOP Midstream, and evidence that MOP Midstream has used commercially reasonable efforts to obtain an amended and restated promissory note payable to each Lender that has previously requested a promissory noteAcknowledgment of Pledge from Centerpoint Energy Field Services, 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 LLC (as amended hereby“Centerpoint”); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate such certificates of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the executionaction, delivery and performance incumbency certificates and/or other certificates of this Fifth Amendment and (B) certify that certain documents previously delivered to officers of MOP Midstream as the Administrative Agent are in full force may require to establish the identities of and effect as of verify the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents authority and capacity of each officer thereof authorized to act in connection with the Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and Documents to which MOP Midstream is a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventparty;
(d) the Administrative Agent has received opinions such evidence as the Administrative Agent may reasonably require to verify that MOP Midstream is duly organized or formed, validly existing, and in good standing in the jurisdiction of its organization;
(ie) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.the Administrative Agent has received such Lien searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral owned by MOP Midstream is subject to no other Liens in favor of any Persons (other than Permitted Liens) or evidence that releases of such other Liens shall be filed contemporaneously with or after the Eleventh Amendment Effective Date;
(f) the Administrative Agent has received an opinion from Sidley Austin LLP, counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentParties, in each case in form and substance acceptable satisfactory to Administrative Agent, with respect to the Administrative Agent Guaranty and its counselother Collateral Documents executed by MOP Midstream;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(fg) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that that, after giving effect to this Eleventh Amendment, (i) 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), and (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing fees, including payment of such amendments to the applicable Mortgages, or has made arrangements satisfactory to reasonable Attorney Costs of the Administrative Agent Agent, due and payable on the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan DocumentsEleventh Amendment Effective Date; and
(ji) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingAgent.
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Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the date first above written when and only when each of the following conditions precedent has shall have been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrowershall have received, the MLPat Agent's office, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement following in the amount of such Lender’s Commitment as indicated on Schedule 2.01 form, substance and date satisfactory to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received Agent: (i) a certificate counterpart of each Loan PartyAmendment Document executed and delivered by each party thereto, (ii) a copy of the preliminary settlement statement required by the Stock Purchase Agreement, (iii) one or more stock certificates with duly executed stock powers attached thereto evidencing all of the issued and outstanding capital stock of PEI, (iv) documents duly executed by creditors of PEI and/or B&B evidencing (A) the release of all Liens encumbering the property or capital stock of PEI and (B) the termination of all guarantees to which PEI is a party, (v) a written opinion of counsel for Borrower, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance date of this Fifth Amendment, addressed to Agent, to the effect that each Amendment Document has been duly authorized, executed and delivered by each Restricted Person that is a party thereto and that the Credit Agreement and each of the other Loan Documents, as amended by the Amendment Documents, constitutes the legal, valid and binding obligations of each Restricted Person that is a party thereto, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency and similar laws and to general principles of equity) and such other matters of Agent may require, (vi) title opinions acceptable to Agent in Agent's sole and absolute discretion with respect to the real property owned by PEI, (vii) letters addressed to Agent from counsel to Borrower and/or Nuon stating that Agent and Lenders shall be permitted to rely upon all opinion letters delivered to B&B, if any, by legal counsel to Borrower and/or Nuon pursuant to the Stock Purchase Agreement, (viii) documents similar to those specified in Sections 4.1(d)(i) and 4.1(e) of the Original Agreement with respect to PEI, and (Bix) certify the Nuon Loan Documents.
(b) Agent shall have received a certificate of a duly authorized officer of Borrower dated the date of this Amendment certifying: (i) that certain documents previously delivered to all of the Administrative Agent representations and warranties set forth in section 4.1 hereof are in full force true and effect correct at and as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization time of such Loan Party effectiveness; and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction as to such other corporate matters as Agent shall deem necessary.
(c) The acquisition by Borrower of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer all of the Borrower issued and the MLP (in form and substance reasonably satisfactory outstanding capital stock of PEI pursuant to the Administrative AgentStock Purchase Agreement and all of the transactions contemplated under the Stock Purchase Agreement shall have been consummated, ▇▇▇▇▇ Fargo Securities, LLC in compliance with the terms and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC conditions thereof and RBC Capital Markets, together, all representations and warranties made by any party to the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower Stock Purchase Agreement shall be true and their subsidiaries (on a consolidated basis) are solvent;correct.
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has additionally received such other documents as Agent may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingrequest.
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Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions precedent has been satisfiedconditions:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) following, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) Responsible Officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each signing Loan Party, each dated as of the Fifth Amendment Effective Date and executed by an appropriate officer(or, which shall (A) certify in the resolutions or other action authorizing the executioncase of certificates of governmental officials, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Effective Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) Notes executed by the Company in favor of each Lender requesting Notes;
(iii) such certificates or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing in its jurisdiction of organization; and
(v) a favorable opinion of Debevoise & ▇▇▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable Parties, addressed to the transactions contemplated by this Fifth Amendment Administrative Agent and each Lender.
(b) The Lead Left Arranger shall have received at least three business days prior to the Effective Date all documentation and information as is reasonably requested in writing by the Administrative Agent, in each case in form and substance acceptable at least 10 business days prior to the Administrative Agent Effective Date, about the Facility Guarantor and its counsel;the Company required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation the Act.
(ec) all governmental All fees and third party consents reimbursement of expenses invoiced no later than two Business Days prior to the transactions contemplated hereby, the obtaining of which is a condition Effective Date related to this Agreement payable to the MLP’sLead Left Arranger, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersLenders shall have been paid to the extent due.
(d) The Company shall have delivered a certificate to the Lead Left Arranger and the lead arranger for the Bridge Facility that the credit facilities provided for by this Agreement constitute a “Qualifying Term Loan Facility” as contemplated by the commitment letter for the Bridge Facility (which certificate may be conditioned on the occurrence of the Effective Date). Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender)unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto. Upon The Administrative Agent shall give the satisfaction (or waiver in accordance with Section 10.01 Company and the Lenders notice of occurrence of the Credit Agreement) Effective Date. The giving of such notice by the Administrative Agent shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and each Lender that each of the conditions precedent set forth in this Section 4, the Administrative Agent 4.01 shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such notice shall be conclusive and bindingPerson.
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Conditions of Effectiveness. This Fifth The effectiveness of this Amendment shall not be effective until (the date each “Amendment No. 2 Effective Date”) is subject to the satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) the The Administrative Agent has shall have received a counterpart counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) duly executed by the Borrowereach Loan Party, each Lender, the MLPIssuing Bank, the other Loan Parties, Swingline Lender and the Administrative Agent, and the Lenders;.
(b) the The Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has shall have received (i) a certificate of each Loan Party, dated as of the Fifth Amendment No. 2 Effective Date and executed by an appropriate officera Responsible Officer, which shall (A) certify the resolutions of its Board of Directors, members or other action governing body authorizing the execution, delivery and performance of this Fifth Amendment Amendment, the Amended Credit Agreement and the other Loan Documents to which it is a party, (B) certify that certain documents previously delivered to identify by name and title and bear the Administrative Agent are in full force and effect as signatures of the Fifth officers of such Loan Party authorized to sign this Amendment Effective Date and the other Loan Documents to which it is a party and (C) attach the charter, articles or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents 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 incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and organization.
(iiic) a certificate The Administrative Agent shall have received from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that 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 V 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 (unless such representations it being understood and warranties specifically refer to an earlier date, in agreed that any representation or warranty which case such representations and warranties shall be 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 qualified by materiality or Material Adverse Effect) only as of such earlier specified date), (iiB) no Default or Event of Default has occurred exists or would result therefrom, and is continuing under the Credit Agreement as of such date, (iiiC) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under in compliance (on a pro forma basis) with the covenants contained in Section 6.12 of the Amended Credit Agreement.
(d) To the 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 (vx) no actionall documentation and other information regarding the Loan Parties requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, suit, investigation or proceeding is pending orincluding the USA PATRIOT Act, to the knowledge extent requested in writing of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid at least ten (i10) fees days prior to the ArrangersAmendment No. 2 Effective Date and (y) a properly completed and signed IRS Form W-8 or W-9, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers as applicable, for each Loan Party and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced 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 closing;
(h) the Amendment No. 2 Effective Date, a Beneficial Ownership Certification in relation to the Borrower has shall have received such Beneficial Ownership Certification (i) delivered an amendment provided that, upon the execution and delivery by such Lender of its signature page to each applicable Mortgage to extend this Amendment, the maturity date described therein and condition set forth in this clause (ii) paid funds sufficient shall be deemed to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory be satisfied).
(e) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Arrangers for payment 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 amounts;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.
(if) the The Administrative Agent shall have received payment of its reasonable and documented out-of-pocket expenses (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, including reasonable out-of-pocket fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) expenses of counsel for the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance Agent) in connection with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the first date (such date being referred to as the “Amendment No. 7 Effective Date”) when each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has (or its counsel) shall have received a counterpart counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed signed by the Parent Borrower, the MLP, the other Loan PartiesGuarantors, the Administrative Agent, and the Incremental Term A-2 Dollar Lenders;.
(b) the The Administrative Agent has shall have received an amended and restated promissory note payable to each Lender that has previously requested a promissory note(x) the legal opinion of Ropes & ▇▇▇▇ LLP, 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 counsel to the Credit Agreement Loan Parties and (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note y) the legal opinion of Smith, Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of Loan Parties, in each Loan Partycase, dated as of the Fifth Amendment No. 7 Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets .
(▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, c) The Administrative Agent shall have received (i) copies of each Organization Document for the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Parent Borrower and their subsidiaries each Guarantor, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 7 Effective Date or a recent date prior thereto; (on ii) signature and incumbency certificates of the officers of the Parent Borrower and each Guarantor executing this Amendment; (iii) resolutions of the Board of Directors or similar governing body of the Parent Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Amendment No. 7 Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (iv) if available, a consolidated basis) are solvent;good standing certificate from the applicable Governmental Authority of the Parent Borrower’s and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Amendment No. 7 Effective Date.
(d) The Administrative Agent and the Amendment No. 7 Lead Arranger shall have been paid all fees payable to the Administrative Agent has received opinions and the Amendment No. 7 Lead Arranger, respectively, on the Amendment No. 7 Effective Date and, to the extent invoiced at least two (2) Business Days prior to the Amendment No. 7 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 (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇ LLP, counsel in accordance with Section 10.04 of the Existing Credit Agreement.
(e) The Administrative Agent shall have received an officer’s certificate with respect to the Loan Parties Parent Borrower and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case Guarantors in form and substance acceptable reasonably satisfactory to the Administrative Agent as to satisfaction of the conditions set forth in clauses (j) and its counsel;
(ek) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;this Section 4.
(f) To the extent requested at least three (3) Business Days prior to the Amendment No. 7 Effective Date (or as otherwise reasonably agreed by the Parent Borrower), the Administrative Agent has shall have received a certificate signed Note executed by the Parent Borrower in favor of each Incremental Term A-2 Dollar Lender requesting a Note, if any.
(g) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term A-2 Dollar Loans no later than 12:00 p.m. on the Business Day that is three (3) Business Days prior to the Amendment No. 7 Effective Date.
(h) The Administrative Agent shall have received a Solvency Certificate from a Responsible Officer of the Parent Borrower certifying that in substantially the form attached hereto as Annex B.
(i) At least three (3) Business Days prior to the Amendment No. 7 Effective Date, the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including a certification regarding beneficial ownership as required by the 31 C.F.R. § 1010.230), including the USA PATRIOT Act, that has been requested in writing at least ten (10) Business Days prior to the Amendment No. 7 Effective Date.
(j) The representations and warranties contained of each Loan Party set forth in Article V of the Existing Credit Agreement are and in each other Credit Document shall be true and correct in all material respects on and as of such date (unless the Amendment No. 7 Effective Date, except to the extent such representations and warranties specifically refer expressly relate to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects as of such earlier date); provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(k) Immediately after giving effect to this Amendment and the making of the Incremental Term A-2 Dollar Loans on the Amendment No. 7 Effective Date as contemplated by this Amendment, (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingexist.
Appears in 1 contract
Conditions of Effectiveness. This Fifth The effectiveness of this First Amendment shall not be effective until (including the date each amendments contained in Section 1 hereof and agreements contained in Section 2 hereof) are subject to the satisfaction of the following conditions precedent has been satisfied:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) this First Amendment shall have been duly executed by the Borrowers, Holdings, each other Guarantor, the July 2017 Incremental Term Loan Lenders and the Administrative Agent has received a counterpart of this Fifth Amendment (which may be include a copy transmitted by telecopy facsimile or PDF or other electronic transmission) executed by the Borrowermethod), the MLP, the other Loan Parties, and delivered to the Administrative Agent, and the Lenders;
(b) the Administrative Agent has shall have 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) Borrowing Request in respect of the Credit Agreement in July 2017 Incremental Term Loans by no later than the amount of such Lender’s Commitment as indicated on Schedule 2.01 applicable time required pursuant to the Credit Agreement (or such shorter period as amended herebymay be agreed by the Administrative Agent); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has shall have received (i) a solvency certificate in the form of each Loan Party, Exhibit L to the Credit Agreement (appropriately completed) dated as of the Fifth First Amendment Effective Date and executed signed by an appropriate officerthe chief financial officer of the Administrative Borrower, which certifying that the Restricted Parties on a consolidated basis after giving effect to the transactions contemplated by this First Amendment are Solvent and (ii) a solvency certificate in the form of Exhibit L to the Credit Agreement (appropriately completed) dated the First Amendment Effective Date and signed by the chief financial officer of Holdings, certifying that the Companies on a consolidated basis after giving effect to the transactions contemplated by this First Amendment are Solvent;
(d) the Administrative Agent shall have received a certificate of the secretary or assistant secretary of each Loan Party dated the First Amendment Effective Date, certifying (A) certify either (i) that attached thereto is a true and complete copy of each Organizational Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its incorporation or organization, as the case may be or (ii) that the copies of such Loan Party’s Organizational Documents as previously certified and delivered to the Administrative Agent on the Closing Date (or, if later, the date of joinder of such Loan Party as a Guarantor under the Loan Documents) remain in full force and effect on the First Amendment Effective Date, without modification or amendment since such prior date of certification and delivery, (B) that attached thereto is a true and complete copy of resolutions or other action duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of this Fifth First Amendment and the other Loan Documents (Bincluding, if applicable, as amended by this First Amendment) certify to which such Loan Party is a party and, in the case of the Borrowers, the borrowing of the July 2017 Incremental Term Loans hereunder, and that certain documents previously delivered to the Administrative Agent such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this First Amendment and any Loan Document or any other document delivered in connection herewith or therewith on behalf of such Loan Party (together with a certificate of another officer as to the incumbency and specimen signature of the Fifth Amendment Effective Date secretary or contain appropriate attachments, including assistant secretary executing the certificate or articles of incorporation or organization or equivalent constitutional documents required by this clause (i)); and (ii) a certificate as to the good standing of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date and (iii) a “bring down” good standing certificate from the chief financial officer of each Loan Party as of the Borrower First Amendment Effective Date (or, in each case, local equivalent thereof), in each case, from such Secretary of State;
(e) the Administrative Agent shall have received, on behalf of itself, the other Agents and the MLP July 2017 Incremental Term Loan Lenders, a favorable written opinion of (in form and substance reasonably satisfactory to the Administrative Agent, i) C▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.& H▇▇▇▇▇▇▇ LLP, special counsel to for the Loan Parties Parties, (ii) B▇▇▇▇ & P▇▇▇▇▇▇, special maritime counsel for the Loan Parties, and (ii) each local counsel listed on Schedule 4.01(f) to the Credit Agreement, in each jurisdiction applicable case (A) dated the First Amendment Effective Date, (B) addressed to Administrative Agent, the other Agents and the July 2017 Incremental Term Loan Lenders and (C) covering customary matters for incremental loan facilities relating to this First Amendment and the other Loan Documents delivered in connection with this First Amendment as the Administrative Agent shall reasonably request;
(f) at least one Business Days (solely for purposes of this Section 4, to be defined as any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is closed) prior to the transactions contemplated First Amendment Effective Date, each Loan Party shall have provided to the July 2017 Incremental Term Loan Lenders the documentation and other information required by this Fifth bank regulatory authorities under or in respect of applicable Anti-Terrorism Laws or “know-your-customer” Legal Requirements, including the Patriot Act;
(g) the Borrowers shall have paid all accrued and unpaid interest on all Initial Term Loans outstanding immediately prior to the First Amendment Effective Date through and including the day immediately prior to the First Amendment Effective Date, regardless of whether payment would otherwise be required under the Credit Agreement at such time;
(h) on or prior to the First Amendment Effective Date, the Borrowers shall have paid to the Administrative Agent for the account of each July 2017 Incremental Term Loan Lender with July 2017 Incremental Term Loan Commitments a fee equal to 2.00% of the aggregate amount of such July 2017 Incremental Term Loan Lender’s July 2017 Incremental Term Loan Commitments in effect on the First Amendment Effective Date;
(i) the Borrowers shall have paid all other costs, fees, expenses and other amounts due and payable pursuant to the Loan Documents and any other fee due and payable to the Administrative Agent or any affiliate thereof as reasonably requested may have been separately agreed to by the Borrowers and the Administrative AgentAgent or such affiliate in connection with this First Amendment, including the reasonable fees and expenses of White & Case LLP;
(j) the Administrative Agent and the Mortgage Trustee shall have received, in each case in form and substance acceptable reasonably satisfactory to the Administrative Agent and its counsel;the Mortgage Trustee, an amendment to each Collateral Vessel Mortgage duly executed by the owner of the relevant Collateral Vessel giving effect to this First Amendment and the July 2017 Incremental Term Loan Facility, and evidence that such amendment has been duly recorded in accordance with the laws of the Applicable Flag Jurisdiction; and
(ek) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the all representations and warranties contained set forth in Article V Section 3 of the Credit Agreement are this First Amendment shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the First Amendment Effective Date with the same effect as though made on and as of such date (unless date, except to the extent such representations and warranties specifically refer expressly relate to an earlier date, date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date), (ii) no Default or Event of Default has shall have occurred and is be continuing under or would occur after giving effect to the Credit Agreement as incurrence of such datethe July 2017 Incremental Term Loans and the application of the proceeds therefrom, (iii) since December 31immediately after giving effect to the incurrence of the July 2017 Incremental Term Loans and the application of the proceeds therefrom, 2015, there has been no event or circumstance that has or could reasonably the Administrative Borrower shall be expected in compliance with the Loan to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit AgreementValue Test, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(iiv) the Administrative Agent shall have received (on behalf an Officer’s Certificate of the Exiting Lenders) funds necessary to pay all principalAdministrative Borrower, interestdated the First Amendment Effective Date, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining certifying compliance with the conditions specified preceding clauses (i), (ii) and (iii) and showing the calculations (in this Section 4, each Lender (other than an Exiting Lenderreasonable detail) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice respect to the Borrower, the Lenders preceding clause (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingiii).
Appears in 1 contract
Conditions of Effectiveness. This Fifth Third Amendment shall not be effective until the date each of the following conditions precedent has been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Third Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the LendersLenders (which may be by telecopy or other electronic transmission);
(b) the Administrative Agent has received an amended and restated a promissory note payable to each Lender that has previously requested a promissory note, as applicable, note 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 the Committed Sums Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Borrower has delivered to the Collateral Agent certificates evidencing all of the issued and outstanding shares of capital stock, if any, pledged pursuant to the Collateral Documents, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, and, with respect to uncertificated securities pledged pursuant to the Collateral Documents, including the pledged uncertificated securities of ▇▇▇▇▇▇ Midstream NGL Holdings, LLC and ▇▇▇▇▇▇ Midstream NGL Holdings II, LLC, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been granted to and perfected by the Collateral Agent for the benefit of the Lenders in accordance with the U.C.C.;
(d) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Third Amendment Effective Date and executed by an appropriate officer, which shall (Aa) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Third Amendment and (Bb) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Third Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth the Third Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(de) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(ef) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(fg) the Borrower and MLP have satisfied their obligations under that certain Engagement Letter dated as of June 18, 2014, as delivered by the Arrangers (the “Engagement Letter”), including without limitation, their obligations under Section 5 of the Engagement Letter with respect to assistance with syndication of the Facility Increase;
(h) MLP, the Borrower and each of the Guarantors have provided the documentation and other information to the Arrangers requested in writing at least three (3) Business Days before the Third Amendment Effective Date that are required by regulatory authorities under the applicable “know-your-customer” rules and regulations, including the PATRIOT Act;
(i) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 20152013, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(gj) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) Lenders and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower Engagement Letter and the Arrangers Fee Letters (as defined in the Engagement Letter) and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(hk) the Administrative Agent has received the results of Lien searches reasonably requested by the Administrative Agent or the Arrangers;
(l) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend excluding Buildings and Manufactured (Mobile) Homes from the maturity date “Collateral” described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with any and all UCC-1 financing statements or UCC-3 amendment financing statements, and fees associated with the filing of such the Mortgages or amendments to Mortgages (including fees associated with title policies and/or endorsements thereto required by the applicable MortgagesAdministrative Agent or the Arrangers), or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(im) the Administrative Agent shall have has received evidence of insurance (on behalf including flood insurance, if applicable) and flood certifications in form and substance reasonably satisfactory to the Administrative Agent with respect to each of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan DocumentsMortgaged Properties; and
(jn) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of this Agreement and the date each occurrence of the Closing Date are subject to satisfaction (or waiver by the Administrative Agent) of the following conditions precedent has been satisfiedon or prior to the Closing Date:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) following, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) Responsible Officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such signing Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement by the Top Borrower and the Administrative Agent;
(ii) a Note (or Notes) executed by the Top Borrower and dated the Closing Date in favor of each Lender requesting a Note (or Notes);
(iii) the Guaranty, dated as of the 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) ▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& ▇▇▇▇▇▇▇ Fargo SecuritiesLLP, LLC and RBC Capital Marketscorporate counsel to the Loan Parties, together, the “Arrangers”)(x) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) Squire ▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.(US) LLP, Arizona counsel to the Loan Parties, (y) ▇▇▇▇▇▇ White ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLC, Alaska counsel to the Loan Parties and (iiz) local ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ PC, Nevada counsel to the Loan Parties, in each jurisdiction applicable case, addressed to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(eix) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect[reserved];
(fx) the Administrative Agent has received a certificate signed by a Responsible Officer of the Top Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (ib) the representations have been satisfied, 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), (iiB) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably be expected to have a Material Adverse Effecthave, (iv) there is no litigationeither individually or in the aggregate, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(gxi) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers Audited Financial Statements and (ii) unaudited consolidated balance sheet of the Administrative Agent’s Top Borrower and its Restricted Subsidiaries dated as of March 31, 2021, and the Arrangersrelated consolidated statements of income or operations, shareholders’ reasonable legal fees equity and expenses to cash flows for the extent invoiced prior to closingfiscal quarters ended on these dates (“Unaudited Financial Statements”);
(hxii) solvency certificate from the chief financial officer or another officer with equivalent duties of the Top Borrower has (i) delivered an amendment to each applicable Mortgage to extend certifying that the maturity date described therein Top Borrower and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments its Subsidiaries, on a consolidated basis, after giving effect to the applicable Mortgages, or has transactions contemplated hereby and the use of proceeds of the Loans made arrangements satisfactory to the Administrative Agent and Top Borrower on the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principalClosing Date, interest, fees and other charges owed to the Exiting Lenders under the Loan Documentsare Solvent; and
(jxiii) the Administrative Agent has received such Loan Parties shall have provided or caused to be provided the documentation and other documents as may be information to the Lenders that are reasonably required by the Administrative Agent 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 ArrangersLenders, as applicable, have reasonably requested such items in writing at least 10 Business Days prior to the Closing Date.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) The Refinancing shall have occurred or shall occur substantially contemporaneously with the funding of the Initial Term Loans on the Closing Date. Without limiting the generality of the provisions of Article IX of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Viad Corp)
Conditions of Effectiveness. This Fifth The effectiveness of this First Amendment shall not be effective until (including the date each amendments contained in Section 1 hereof and agreements contained in Section 2 hereof) are subject to the satisfaction of the following conditions precedent has been satisfied:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) the Administrative Agent has received a counterpart of this Fifth First Amendment (which may be by telecopy or other electronic transmission) shall have been duly executed by the Borrower, the MLPeach Guarantor, the other Loan PartiesLenders, the Administrative AgentIncremental Lenders, the Facility Agent and the Security Trustee (which may include a copy transmitted by facsimile or PDF or other electronic method), and delivered to the LendersFacility Agent;
(b) a duly executed original of a Guarantor Accession Agreement made among the Administrative Agent has received an amended Additional Guarantors 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 noteFacility Agent;
(c) the Administrative Facility Agent has shall have received (i) a certificate of each Loan Party, dated as an officer or an officer of the Fifth sole member, as the case may be, of each Security Party dated the First Amendment Effective Date and executed by an appropriate officerDate, which shall certifying (A) certify either (i) that attached thereto is a true and complete copy of each Organizational Document of such Security Party, or (ii) that the copies of such Security Party’s Organizational Documents as previously certified and delivered to the Facility Agent on the Closing Date (or, if later, the date of joinder of such Security Party as a Guarantor under the Loan Documents) remain in full force and effect on the First Amendment Effective Date, without modification or amendment since such prior date of certification and delivery, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or other action sole member of such Security Party authorizing the execution, delivery and performance of this Fifth First Amendment and the other Loan Documents (Bincluding, if applicable, as amended by this First Amendment) certify to which such Security Party is a party and, in the case of the Borrower, the borrowing of the Loans hereunder, and that certain documents previously delivered to the Administrative Agent such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as of to the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents incumbency and specimen signature of each officer, director and attorney-in-fact authorized to execute this First Amendment and any Loan Party certified by the relevant authority of the jurisdiction of organization Document or any other document delivered in connection herewith or therewith on behalf of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificatesSecurity Party, (ii) a good standing certificate for as to the goodstanding of each Loan Security Party from as of a date reasonably near to the First Amendment Effective Date certifying that each Security Party is duly formed and in goodstanding under the laws of its jurisdiction of incorporation or organization as of a recent date, and (iii) an original or certified copy power of attorney under which any Loan Document is executed on behalf of a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventSecurity Party;
(d) the Administrative Facility Agent has shall have received opinions copies of all consents which a Security Party requires to enter into, or make any payment under, any Loan Document, each certified as of a date reasonably near the First Amendment Effective Date by an authorized person of such party as being a true and correct copy thereof, or certification by such authorized person that no such consents are required;
(ie) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel the Facility Agent shall have received such documentation and other evidence as is reasonably requested by the Facility Agent or a Lender in order for each to carry out and be satisfied with the Loan Parties and (ii) local counsel results of all necessary “know your customer” or other checks which it is required to carry out in each jurisdiction applicable relation to the transactions contemplated by this Fifth Amendment Agreement and as reasonably requested by the Administrative Agentother Loan Documents, in each case in form including without limitation obtaining, verifying and substance acceptable to recording certain information and documentation that will allow the Administrative Facility Agent and its counsel;
(e) all governmental and third party consents each of the Lenders to identify each Security Party in accordance with the transactions contemplated hereby, requirements of the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effectPATRIOT Act;
(f) two valuations, each dated no more than thirty (30) days prior to the Administrative First Amendment Effective Date, addressed to the Facility Agent (at the expense of the Borrower) by an Approved Broker indicating the Fair Market Value of each of the Delivered Vessels, and each of the Additional Young Vessels to be financed by the Incremental Commitment;
(g) the Facility Agent shall have received in form approved by the Facility Agent an amendment to each Vessel Mortgage duly executed by the owner of the relevant Vessel reflecting this First Amendment, and evidence that such amendment has received been duly recorded in accordance with the Laws of the Approved Flag;
(h) a certificate signed copy of the memorandum of agreement (together with all amendments and addenda thereto) for each Additional Young Vessel duly executed by a Responsible Officer the relevant Additional Guarantor who will be the owner thereof, and the relevant seller, together with evidence of any address or similar commission arrangements, all of which shall be of terms acceptable to the Facility Agent (certified by an officer of the Borrower certifying that or such Additional Guarantor to be a true, correct and complete copy thereof);
(i) evidence that each Additional Guarantor who will be the owner of an Additional Young Vessel has duly opened an Operating Account and has delivered to the Facility Agent all resolutions, signature cards and other documents or evidence required in connection with the opening, maintenance and operation of such accounts with the Account Bank;
(j) a duly executed original of (i) an amendment to the Membership Interest Pledge and (ii) an Account Pledge with respect to each Additional Guarantor who will be the owner of an Additional Young Vessel, and of any documents required to be delivered thereunder;
(k) on or prior to the First Amendment Effective Date, the Borrower shall have paid to the Facility Agent for the account of each Incremental Lender with First Incremental Commitments a fee equal to 1% of the aggregate amount of such Incremental Lender’s Commitments in effect on the First Amendment Effective Date;
(l) the Borrower shall have paid all costs, fees, expenses and other amounts due and payable pursuant to the Loan Documents and in connection with this First Amendment;
(m) the Facility Agent shall have received such legal opinions and other documents reasonably requested by the Facility Agent in connection with this First Amendment; and
(n) (i) all representations and warranties contained set forth in Article V Section 3 of the Credit Agreement are this First Amendment shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the First Amendment Effective Date with the same effect as though made on and as of such date (unless date, except to the extent such representations and warranties specifically refer expressly relate to an earlier date, date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date), ) and (ii) no Default or Event of Default has shall have occurred and is be continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, would occur after giving effect to the knowledge of such officer, threatened in any court Incremental Commitments or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, incurrence of the Administrative Agent (on behalf of itself Loans pursuant to this First Amendment and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf application of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproceeds therefrom.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Third Amendment shall not be effective until the date each of the following conditions precedent has been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Third Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the LendersLenders (which may be by telecopy or other electronic transmission);
(b) the Administrative Agent has received an amended and restated a promissory note payable to each Lender that has previously requested a promissory note, as applicable, note 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 the Committed Sums Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Borrower has delivered to the Collateral Agent certificates evidencing all of the issued and outstanding shares of capital stock, if any, pledged pursuant to the Collateral Documents, which certificates shall in each case be accompanied by undated stock powers duly executed in blank, and, with respect to uncertificated securities pledged pursuant to the Collateral Documents, including the pledged uncertificated securities of ▇▇▇▇▇▇ Midstream NGL Holdings, LLC and ▇▇▇▇▇▇ Midstream NGL Holdings II, LLC, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been granted to and perfected by the Collateral Agent for the benefit of the Lenders in accordance with the U.C.C.;
(d) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Third Amendment Effective Date and executed by an appropriate officer, which shall (Aa) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Third Amendment and (Bb) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Third Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth the Third Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(de) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(ef) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(fg) the Borrower and MLP have satisfied their obligations under that certain Engagement Letter dated as of June 18, 2014, as delivered by the Arrangers (the “Engagement Letter”), including without limitation, their obligations under Section 5 of the Engagement Letter with respect to assistance with syndication of the Facility Increase;
(h) MLP, the Borrower and each of the Guarantors have provided the documentation and other information to the Arrangers requested in writing at least three (3) Business Days before the Third Amendment Effective Date that are required by regulatory authorities under the applicable “know-your-customer” rules and regulations, including the PATRIOT Act;
(i) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.,
Appears in 1 contract
Sources: Credit Agreement
Conditions of Effectiveness. This Fifth First Amendment shall not be become effective until as of the date when, and only when, each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has shall have received a the following, each dated as of the First Amendment Effective Date:
(i) an executed counterpart hereof from each of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, Credit Parties and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation certificate, signed by the president, the chief executive officer or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (Parent, in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securitiescertifying that as of the First Amendment Effective Date, LLC both immediately before and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions consummation of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the all representations and warranties contained in Article V of the Credit Parties contained in this First Amendment, the Credit Agreement and the other Credit Documents qualified as to materiality are true and correct and those not so qualified are true and correct in all material respects on and (except to the extent any such representation or warranty is expressly stated to have been made as of such date (unless such representations and warranties specifically refer to an earlier a specific date, in which case such representations representation or warranty is true and warranties shall be correct (if qualified as to materiality) or true and correct in all material respects (if not so qualified), in each case as of such earlier date), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such datecontinuing, and (iii) no Material Adverse Effect has occurred since December 31, 20152003, and there has been exists no event event, condition or circumstance state of facts that has or could reasonably be expected to have result in a Material Adverse Effect; and
(iii) a certificate of the secretary or assistant secretary of each Credit Party, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (ivi) there is no litigation, investigation the articles or proceeding known to certificate of incorporation or other comparable organizational documents and affecting the Borrower bylaws or any affiliate for which comparable governing documents of such entity have not been amended since the Borrower is required to give notice under the Credit Agreement, Closing Date and (vii) no actionthat attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, suitauthorizing the execution, investigation or proceeding delivery and performance of this First Amendment and any other Credit Documents to which it is pending ora party delivered in connection herewith.
(b) Since December 31, 2003, both immediately before and after giving effect to the knowledge consummation of such officerthe First Amendment and the transactions contemplated hereby, threatened in there shall not have occurred (i) a Material Adverse Effect or (ii) any court event, condition or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any state of their respective properties facts that could reasonably be expected to have a Material Adverse Effect;.
(gc) The Borrower shall have paid all fees and expenses relating to the Borrower has paid First Amendment and the Credit Agreement which are due and payable on the First Amendment Effective Date, including (i) the unpaid balance of all fees payable to the Arrangers, Arranger and the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment the Engagement Letter dated as of June 18, 2004 between the Borrower and the Arrangers Arranger and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal all other fees and expenses to of the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable MortgagesArranger, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment Lenders required hereunder or under any other Credit Document to be paid on or prior to the First Amendment Effective Date (including reasonable fees and expenses of such amounts;counsel) in connection with this First Amendment and the transactions contemplated hereby.
(id) the The Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreementdocuments, for purposes of determining compliance certificates, opinions, and instruments in connection with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment transactions contemplated hereby as it shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingreasonably requested.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Second Amendment shall not be become effective until as of the date (the “Second Amendment Effective Date”) when, and only when, each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has shall have received a the following, each dated as of the Second Amendment Effective Date:
(i) an executed counterpart hereof from each of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, Borrower and the LendersLenders and each other Person extending Additional Commitments;
(bii) A duly executed Revolving Loan Note to the Administrative Agent has received an amended and restated promissory note payable to order of 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 Revolving Commitment as indicated on Schedule 2.01 to Ratio of 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 noteRevolving Loan Commitment;
(ciii) the Administrative Agent has received (i) a certificate The legal opinions of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the executionMilbank, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative AgentTweed, ▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& ▇▇▇▇▇ Fargo Securities▇▇, LLC LLP, counsel to the Borrower, and RBC Capital Markets, together, the “Arrangers”)(B) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) W. ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇, in-house counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentBorrower, in each case in form and substance acceptable addressed to the Administrative Agent and its counsel;Lender Group, together with copies of any legal opinions upon which any of the foregoing rely; and
(eiv) all governmental A loan certificate signed by an Authorized Signatory of the Borrower in substantially the form of Exhibit H to the Credit Agreement.
(b) Since December 31, 2005, both immediately before and third party consents after giving effect to the consummation of the Second Amendment and the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default there has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event which has had or circumstance that has or which could reasonably be expected to have a Material Materially Adverse Effect, .
(ivc) there is no litigation, investigation or proceeding known The Borrower shall have paid all fees and expenses relating to the Second Amendment and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit AgreementAgreement which are due and payable on the Second Amendment Effective Date, including (i) the unpaid balance of all fees payable to Wachovia Capital Markets, LLC and (v) no action, suit, investigation or proceeding is pending or, the Administrative Agent pursuant to the knowledge Engagement Letter dated as of such officerNovember 20, threatened in any court or before any arbitrator or Governmental Authority by or against 2006 between the Borrower, any GuarantorWachovia Capital Markets, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, LLC and the Administrative Agent Agent, (on behalf of itself and the Lendersii) and all other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable MortgagesWachovia Capital Markets, or has made arrangements satisfactory to LLC, the Administrative Agent and the Arrangers for payment Lenders required hereunder or under any other Credit Document to be paid on or prior to the Second Amendment Effective Date (including reasonable fees and expenses of such amounts;counsel) in connection with this Second Amendment and the transactions contemplated hereby and (iii) all accrued and unpaid fees and interest, if any, outstanding under the Credit Agreement as of the Second Amendment Effective Date.
(id) the The Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreementdocuments, for purposes of determining compliance certificates, opinions, and instruments in connection with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment transactions contemplated hereby as it shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingreasonably requested.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the first date, on or after the date hereof and prior to January 2, 2003, on which each of the following conditions precedent has been satisfied:fulfilled (such first date being referred to herein as the "Effective Date"):
(a) the Administrative The Agent has shall have received a counterpart (i) counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) duly executed by the Borrower, the MLPBank, the other Loan Parties, Agent and the Administrative AgentIssuing Bank, and (ii) the Lendersfollowing, each dated the Effective Date (except as otherwise specified below), in form and substance satisfactory to the Agent and each Bank (except where otherwise specified below) and (except for the Notes) in sufficient quantity for each party to have a fully executed original:
(A) the consent of AES, substantially in the form of Exhibit A hereto, duly executed by an authorized officer of AES;
(bB) certified copies of the Administrative Agent has received an amended resolutions of the Board of Directors (or comparable governing body) of AES NY authorizing the Borrower to enter into this Amendment, and restated promissory note payable of all documents evidencing other necessary action (partnership. limited liability company or otherwise) and Governmental Approvals, if any, with respect to each Lender that has previously requested this Amendment;
(C) a promissory notecertificate of AES NY certifying the names, true signatures and incumbency of the officers of AES NY authorized to sign this Amendment and the other documents to be delivered hereunder;
(D) copies of the certificate of limited partnership, partnership agreement, certificate of formation and limited liability company agreement, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement Borrower and AES NY, together with all amendments thereto, in the amount of such Lender’s Commitment as indicated on Schedule 2.01 each case certified in a manner satisfactory 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 noteAgent;
(cE) the Administrative Agent has received (i) a certificate of each Loan Party, dated as good standing certificates in respect of the Fifth Amendment Effective Date Borrower and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party AES NY from its jurisdiction of incorporation organization and each jurisdiction in which it is qualified to do business as partnership or organization limited liability company, as of a recent datethe case may be, and in each case dated no earlier than 10 days prior to the Effective Date;
(iiiF) a certificate from new Note payable to the chief financial officer order of the Borrower and Bank, duly executed by the MLP Borrower;
(in form and substance reasonably satisfactory to the Administrative Agent, G) favorable opinions of:
(1) ▇▇▇▇▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& ▇▇▇▇▇ Fargo SecuritiesLLP, LLC special New York counsel to the Borrower and RBC Capital MarketsAES NY, togetherin substantially the form of Exhibit B hereto; and
(2) an in-house counsel of AES, acting as counsel to the “Arrangers”)Borrower and AES NY, in substantially the form of Exhibit C hereto; and
(H) certifying such other approvals, certificates, opinions and documents as the Agent may reasonably request.
(b) The following statements shall be true and the Agent shall have received a certificate of the Borrower, dated the Effective Date and in sufficient copies for each Bank, stating that:
(i) each Loan Document Representation and Warranty is true and correct on and as of such date, before and after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects though made on and as of such date (unless such representations with each reference in the Loan Documents to the Existing Agreement being deemed to be a reference to this Amendment 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 datethe Amended Agreement), and
(ii) no Default or Event of Default has occurred and is continuing under continuing, both before and after giving effect to the Credit Agreement transactions contemplated by this Amendment.
(c) The following statement shall be true and the Agent shall have received a certificate of AES, dated the Effective Date and in sufficient copies for each Bank, stating that: the representations and warranties set forth in Section 5 of the Guaranty are true and correct on and as of the Effective Date with the same effect as though made on and as of such date, .
(iiid) since December 31, 2015, there has been no event All fees payable on or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, prior to the knowledge of such officerEffective Date pursuant to the letter agreement, threatened in any court or before any arbitrator or Governmental Authority by or against dated October 23, 2002, between the Agent and the Borrower, and all amounts payable pursuant to Section 11.02 of the Existing Agreement for which invoices have been delivered to the Borrower on or prior to the Effective Date, shall have been paid in full or arrangements satisfactory to the Agent shall have been made to cause them to be paid in full on such date.
(e) All Governmental Approvals necessary in connection with this Amendment and the transactions contemplated hereby shall have been obtained and be in full force and effect. All third party approvals necessary or, in the judgment of the Agent, advisable in connection with this Amendment and the transactions contemplated hereby shall have been obtained and be in full force and effect. All such Governmental Approvals and third party approvals, if any, shall be in form and substance satisfactory to the Agent.
(f) The Borrower shall have received for cancellation the Notes issued to any Guarantor, financial institution originally a party to the MLP’s general partner, or any of their respective properties Credit Agreement that could reasonably be expected to have is no longer a Material Adverse Effect;Bank.
(g) the Borrower has paid The sum of (i) fees to the Arrangers, aggregate principal amount of all Loans and Unreimbursed Drawings outstanding on the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and Effective Date plus (ii) the Administrative Agent’s and aggregate LC Outstandings of all Letters of Credit outstanding on the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4Effective Date, in each case, in accordance with case after giving effect to all Extensions of Credit and prepayments made on such date and the requirements application of the Credit Agreementproceeds thereof, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingnot exceed $15,000,000.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment Agreement shall not be effective until to amend and restate the date each of Existing Credit Agreement when the following conditions precedent has have been satisfied:
(a) The Administrative Agent shall have received all of the following, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent has received a counterpart Agent:
(i) counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) Agreement executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, the LC Issuer, the Swingline Lender and by Lenders constituting Majority Lenders under the Lenders;Existing Credit Agreement.
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for Note executed by the Borrower in favor of each Loan Party from its jurisdiction of incorporation or organization as of Lender requesting a recent date, and Note;
(iii) a certificate from Supplement and Third Amendment to Pledge and Security Agreement executed by the chief financial officer parties thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and as the MLP (Administrative Agent may require, in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securitiesevidencing the identity, LLC authority and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect capacity of each Responsible Officer thereof authorized to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and act as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of in connection with this Agreement and the Borrower certifying that (i) 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 other Loan Documents 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and a party;
(v) no actionsuch documents and certifications as the Administrative Agent may reasonably require to evidence that each Restricted Person is duly organized or formed, suitand that each of the Borrower and each Restricted Person is validly existing, investigation in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or proceeding is pending oroperation of properties or the conduct of its business requires such qualification, except to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(gvi) the Borrower has paid (i) fees a favorable opinion of ▇▇▇▇▇ Lord ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the ArrangersRestricted Persons in each case in form and substance satisfactory to the Administrative Agent, addressed to the Administrative Agent and each Lender;
(on behalf vii) a certificate of itself a Responsible Officer of each Restricted Person either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Restricted Person and the Lendersvalidity against such Restricted Person of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.03(a) and other fees (b) have been satisfied, and expenses due and payable pursuant (B) that there has been no event or circumstance since the date of the Initial Financial Statements that has had or could be reasonably expected to any fee letters applicable to this Fifth Amendment between have, either individually or in the aggregate, a Material Adverse Effect;
(ix) a duly completed pro forma Compliance Certificate as of the last day of the Fiscal Quarter of the Borrower and most recently ended prior to the Arrangers and Closing Date, signed by a Responsible Officer of the Borrower, reflecting, among other matters, compliance by the Borrower, on a pro forma basis after giving effect to the Restructuring Transaction; and
(iix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent’s , the LC Issuer or the Majority Lenders reasonably may require.
(b) The Borrower shall be concurrently closing the Restructuring Transactions.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Arrangers’ reasonable legal fees and expenses Administrative Agent to the extent invoiced prior to closing;
or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (h) provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting LenderAgent). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the applicable signing Loan Party, each dated as of the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent has received a counterpart Agent:
(i) executed counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) Agreement executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, each Lender and the Lenderseach Loan Party;
(bii) each Note executed by the Administrative Agent has received an amended and restated promissory note payable to Borrowers in favor of 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 noteNote or Notes;
(ciii) the Administrative Agent has received [Reserved];
(iiv) [Reserved];
(v) [Reserved];
(vi) [Reserved];
(vii) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officera secretary, assistant secretary or other senior officer (as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its shareholders, partners, managers, members, board of directors, board of managers or other action governing body authorizing the execution, delivery and performance of this Fifth Amendment the Loan Documents to which it is a party and, in the case of the Borrowers, the borrowings hereunder, and (B) certify that certain documents previously delivered to the Administrative Agent such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect as effect, (B) identify by name and title and bear the signatures of the Fifth Amendment officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a party on the Effective Date or contain appropriate attachments, including and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent constitutional documents thereof) of each such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws by-laws or operating, management management, partnership or partnership agreementsimilar agreement and (y) that such documents or agreements have not been amended, restated, amended and incumbency certificatesrestated, supplemented or otherwise modified (except as otherwise attached to such certificate and certified therein as being the only amendments, restatements, amendments and restatements, supplements or modifications thereto as of such date) and (ii) a good standing (or equivalent) certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date for such Loan Party from (A) its jurisdiction of organization and (iiiB) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable in which it is qualified to engage in business where its ownership, lease or operation of properties or the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agentconduct of its business requires such qualification, except, in each the case in form and substance acceptable to the Administrative Agent and its counsel;
of this clause (e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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 dateB), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(gviii) the Borrower has paid a certificate of a duly authorized officer of each Loan Party either (iA) fees to the Arrangersstating that all consents, the Administrative Agent (on behalf of itself licenses and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee approvals required in connection with the filing of execution, delivery and performance by such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent Loan Party and the Arrangers for payment validity against such Loan Party of the Loan Documents to which it is a party have been received and are in full force and effect or (B) stating that no such amountsconsents, licenses or approvals are so required in connection with the consummation by such Loan Party of the Transactions;
(iix) the Administrative Agent shall have received (on behalf a certificate signed by a Responsible Officer of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) Holdings certifying that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 44.01(f), (h) and (i) have been satisfied as of such date;
(x) a solvency certificate, substantially in the form of Exhibit L from a Responsible Officer of Holdings (or, at the option of Holdings, a customary third-party opinion as to the solvency of Holdings and its Subsidiaries, on a consolidated basis);
(xi) a Borrowing Base Certificate covering the Borrowing Base as of September 30, 2018, with customary supporting documentation;
(xii) certificates of insurance evidencing that the Administrative Agent, for the benefit of the Secured Parties, shall be named as an additional insured, assignee, mortgagee and/or loss payee, as appropriate, with respect to all applicable insurance coverage and policies of the Loan Parties; and
(xiii) the executed opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the Lenders and the L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent shall promptly provide written notice may reasonably request.
(b) (i) Any fees required to be paid on or before the Effective Date to the BorrowerAdministrative Agent, any Arranger or the Lenders pursuant to the Fee Letter shall have been paid and (including ii) any costs and expenses required to be paid on or before the Exiting LendersEffective Date to the Administrative Agent, any Arranger or the Lenders to the extent invoices have been received by Holdings at least two Business Days prior to the Effective Date (or such later date as reasonably agreed by Holdings) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindinghave been paid.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Warrior Met Coal, Inc.)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each of the following conditions precedent has been satisfied:
(a) This Amendment shall become effective as of the date first set forth above when and if the Administrative Agent has shall have received a counterpart from the Required Lenders, the Fronting Bank and the Borrower signed counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;Amendment; and
(b) Section 2 of this Amendment shall become effective on the date (the "Amendment Date") when and if 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;shall have received:
(c) the Administrative Agent has received (i) a certificate of each Loan Partya Secretary or Assistant Secretary of the Borrower, dated as of the Fifth Amendment Effective Date and executed by an appropriate officerDate, which shall certifying:
(A) certify 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 authorizing by any Governmental Authority is or will be required in connection with the execution, delivery and performance by the Borrower of this Fifth Amendment and (B) certify that certain documents previously delivered to or the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventAmended Credit Agreement;
(dF) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained set forth in Article V III of the Credit Agreement are true and correct in all material respects on and respect as of such date the Amendment Date; and
(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), (iiG) that no Default or Event of Default or Default under the Credit Agreement, as amended by this Amendment, has occurred and is continuing under on the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse EffectAmendment Date;
(gii) a certificate of another duly authorized officer of the Borrower has paid as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers above; and (ii) iii favorable legal opinions of the Administrative Agent’s following, in form and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements substance satisfactory to the Administrative Agent and Agent:
(A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Arrangers for payment of such amountsBorrower;
(iB) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, interest, fees and other charges owed special New York counsel to the Exiting Lenders under the Loan DocumentsBorrower; and
(jC) King & Spalding LLP, special New York counsel to the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingAgent.
Appears in 1 contract
Sources: Credit Agreement (Txu Corp /Tx/)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until the date each upon receipt by Access Capital (unless otherwise waived by Access Capital in writing) of the following conditions precedent has been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case all in form and substance acceptable to Access Capital): (a) this Amendment duly executed and delivered by Company, each Responsible Party and Access Capital, (b) the Administrative Agent executed approvals and its counsel;
consents required by Section 1.1 of the Share Purchase Agreement, (c) an acknowledgment letter executed by SD, Company, TRC and ICCI confirming that all closing conditions set forth in the Share Purchase Agreement have been satisfied and the transactions contemplated by the Share Purchase Agreement have been consummated, (d) all such documentation as Access Capital shall require for each of ICCI and TRC to grant to Access Capital a first priority perfected security interest in each such entity’s assets, (e) pro-forma financial statements for ICCI for the six (6) full calendar month period following the effective date hereof, (f) copies of all governmental Schedules, Exhibits and third party consents amendments to the Share Purchase Agreement, (g) copies of all amendments to Company’s and TRC’s certificate of incorporation and bylaws as contemplated by Section 7.1(d) to the Share Purchase Agreement (which such amendments shall not modify in any manner whatsoever the name of any such entity or modify any other provision thereof deemed material by Access Capital), (h) copies of all documentation required to satisfy the requirements of Section 10 of the Share Purchase Agreement, (i) corporate resolutions for Company, ICCI and TRC authorizing the transactions contemplated herebyby the Share Purchase Agreement and the this Amendment and (j) a consent and amendment fee in the amount of $15,000 (the “Consent and Amendment Fee”), which such fee shall be deemed earned in full on the obtaining of which is a condition date hereof, shall not be subject to the MLP’s, the Borrower’s rebate or their affiliates’ funding obligations under the Credit Agreement, have been obtained pro-ration for any reason and shall be payable by the Company to Access Capital in full force ten consecutive monthly installments of $1500 each, the first payment of which shall commence on March 1, 2009 and effect;
(f) the Administrative Agent has received a certificate signed remaining payments of which shall be made on the first day of each succeeding month, all of which payments may be charged when due by a Responsible Officer Access Capital to Company’s account. Any unpaid portion of the Borrower certifying that (i) the representations Consent 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 Amendment Fee shall be true and correct in all material respects as of such earlier date), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant in full upon the earlier to any fee letters applicable to this Fifth Amendment between occur of (1) the Borrower and occurrence of an Event of Default, (2) termination of the Arrangers ARPA and (ii3) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf unwinding of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required transactions contemplated by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, Share Purchase Agreement in accordance with the requirements terms of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding6 below.
Appears in 1 contract
Sources: Consent, Amendment and Joinder Agreement (International Consolidated Companies, Inc.)
Conditions of Effectiveness. This Fifth Amendment (a) The Amendments contained in Section 2 above shall not be effective until the date each of the following conditions precedent has been satisfied:
(ai) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and each Lender;
(ii) the Lenders;Administrative Agent has received (x) a certificate of each Loan Party, dated as of the date hereof and executed by an appropriate officer, 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 are in full force and effect as of the date 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 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 knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect. 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 Amendments contained in Section 3 above shall not be effective until the date each of the following conditions precedent has been satisfied:
(i) if the Exchange Offer will be completed on the Eleventh Amendment Effective Date, 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;
(cii) if the Administrative Agent has received (i) a certificate of each Loan Party, dated as of Exchange Offer will be completed on the Fifth Eleventh Amendment Effective Date and executed by an appropriate officerDate, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (ix) fees an amendment fee (the “Amendment Fee”) to the Arrangers, 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 the amendments becoming effective on behalf of itself and the Lenderssuch date) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (iiy) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced at least one (1) Business Day prior to closingthe Eleventh Amendment Effective Date;
(hiii) the Borrower has either (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(jx) the Administrative Agent has received such other documents 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, the Administrative Agent has received that certain Intercreditor Agreement, dated as may be reasonably required of the Eleventh Amendment Effective Date, in form and substance satisfactory to the Administrative Agent (it being understood that the form of Intercreditor Agreement received by the Administrative Agent or on the Arrangersdate hereof is satisfactory) and duly executed by the Administrative Agent, the Loan Parties and the other parties thereto. Without limiting The Administrative Agent agrees that it will, upon the generality satisfaction of the provisions conditions contained in this Section 4(b), promptly provide notice to the Borrower and the Lenders of Article IX the occurrence of the Eleventh Amendment Effective Date. If the Eleventh Amendment Effective Date 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 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 Administrative Agent 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, for purposes Agreement in the amount of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting such Lender) that has signed this Fifth Amendment shall be deemed ’s Commitment as indicated on Schedule 2.01 to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice return its existing original promissory note to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and Borrower promptly after receiving such notice shall be conclusive and bindingreplacement promissory note.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Joinder and Amendment No. 1 shall not be become effective until as of the date each hereof upon satisfaction of the following conditions precedent has been satisfiedconditions: Agent shall have received:
(a) the Administrative Agent has received a counterpart Six (6) copies of this Fifth Joinder and Amendment (which may be by telecopy or other electronic transmission) No. 1 duly executed by the BorrowerCompanies (including AMRGI), the MLP, the other Loan Parties, the Administrative Agent, Agent and the LendersRequired Lenders and consented to by each Guarantor;
(b) Six (6) copies of a duly executed amendment to the Administrative Amended and Restated Pledge Agreement executed by G-III Inc. in favor of Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory noteas of April 3, as applicable2008 (the “Pledge Agreement”), or that is requesting a promissory note pursuant to Section 2.09(a) which 100% of the Credit Agreement issued and outstanding shares of the capital stock of AMRGI are pledged to Agent as additional “Pledged Collateral” (as defined in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to Pledge Agreement), together with appropriate stock powers executed in blank and 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 notestock certificates;
(c) A true and correct copy of each of the Administrative agreements, documents and instruments entered into by any of the Companies and/or AMRGI pursuant to which AMRGI. acquired certain assets of Wilsons The Leather Experts Inc. and certain of its Subsidiaries including without limitation 116 outlet store locations, $18,500,000 in Inventory, distribution center operations and the Wilsons name and other related trademarks and tradenames (the “Wilsons Acquisition”);
(d) Six (6) copies of a duly executed collateral assignment in favor of Agent, in form and substance satisfactory to Agent has received and suitable for filing in the United States Patent and Trademark Office, with respect to intellectual property acquired in connection with the Wilsons Acquisition;
(ie) Copies of lien searches conducted in contemplation of the Wilsons Acquisition confirming to Agent’s satisfaction that the assets acquired in connection therewith are free and clear of any liens other than Permitted Encumbrances;
(f) a certificate of each Loan PartySecretary’s Certificate and resolutions, dated as all in form and substance reasonably satisfactory to Agent and its counsel, of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall board of directors of AMRGI authorizing (A1) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Joinder and Amendment No. 1 and (B2) certify the granting by AMRGI of the liens created by the Financing Agreement, and such certificate shall state that certain documents previously delivered to the Administrative Agent are in full force and effect resolutions thereby certified have not been amended, modified, revoked or rescinded as of the Fifth Amendment Effective Date or contain appropriate attachments, including date of such certificate;
(g) a copy of the certificate or articles of incorporation or organization or equivalent constitutional documents and by-laws of each Loan Party AMRGI, such certificate of incorporation shall have been certified by the relevant authority Secretary of the jurisdiction State or other appropriate official of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and incorporation;
(iiih) a certificate from the chief financial officer copy of the Borrower and certificate of foreign qualification of AMRGI issued by the MLP Secretary of State or other appropriate official of each jurisdiction where the conduct of AMRGI’s business activities or the ownership its properties reasonably necessitates qualification;
(in form and substance reasonably satisfactory to the Administrative Agent, i) executed opinion of counsel from Fulbright & ▇▇▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case L.L.P. in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of Agent, which shall generally cover such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary matters which were opined upon in its April 3, 2008 opinion letter as such matters apply to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan DocumentsAMRGI; and
(j) the Administrative Agent has received such other certificates, instruments, documents and agreements as may reasonably be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4its counsel, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment of which shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or form and substance satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingits counsel.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment is subject to the provisions of Section 14.11 of the 2005 Credit Agreement. Section 1 of this Agreement shall not be become effective until as of the date each of first above written (the following conditions precedent has been satisfied“Amendment Effective Date”) when and only when, on or before January 9, 2009, the Administrative Agent shall have received:
(a) Notice from the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy administrative agent under the 2004 Credit Agreement that all commitments thereunder have been terminated and that all amounts payable or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;accrued under such credit agreement have been paid in full.
(b) A security agreement in substantially the form of Annex B hereto (the “Security Agreement”), duly executed by each Credit Party and each Subsidiary listed on Schedule I hereto (collectively with the Credit Parties, the “Granting Parties”), together with:
(i) acknowledgment copies or stamped receipt copies of financing statements, duly filed on or before the Amendment Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent has received an amended may reasonably request in order to perfect and restated promissory note payable to each Lender that has previously requested protect the liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(ii) the results of a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) search of the Credit Agreement Uniform Commercial Code (or equivalent) filings made with respect to the Collateral Grantors in the amount jurisdictions contemplated by clause (i) above and copies of the financing statements (or similar documents) disclosed by 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;search.
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (A Canadian security agreement in form and substance reasonably satisfactory to the Administrative Agent, duly executed by ▇▇▇▇▇ Fargo SecuritiesApparel Group Canada, LLC LP, together with evidence of such filings and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC other actions required under the laws of the applicable jurisdiction that the Administrative Agent may reasonably request in order to perfect the liens and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;security interests created thereunder.
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.A certificate from a Responsible Officer, counsel in form and substance reasonably satisfactory to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent effect that all representations and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer warranties of the Borrower certifying that (i) the representations and warranties contained in Article V of the 2005 Credit Agreement are true true, correct and correct complete in all material respects with the same effect as if made on and as of such date (unless the Amendment Effective Date, except to the extent such representations and warranties specifically refer expressly relate to an earlier date, 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, (ii) as amended hereby; that, after giving effect to the transactions contemplated by this Amendment, no Default or Event of Default has occurred and is continuing continuing; and that each of the conditions to the effectiveness of this Amendment has been satisfied or waived (assuming satisfaction of the Administrative Agent where not advised otherwise).
(e) A certificate of the secretary, assistant secretary or general counsel of the Borrower, each Additional Obligor and each other Grantor (as defined in the Security Agreement) certifying as to the incumbency and genuineness of the signature of each officer of such Person executing this Amendment or each other Loan Document to which it is a party and certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by the Board of Directors of such Person authorizing, in the case of the Borrower, the borrowings contemplated under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the 2005 Credit Agreement, as amended hereby, and in the case of each such Person, the execution, delivery and performance of this Amendment or the Loan Documents to which it is to be a party.
(vf) no actionFavorable opinions of ▇▇▇ ▇. ▇▇▇▇▇▇, suit, investigation or proceeding is pending or, General Counsel to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any GuarantorCravath, the MLP’s general partnerSwaine & ▇▇▇▇▇ LLP, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees special counsel to the ArrangersBorrower, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Pennsylvania counsel to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein Borrower, and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, New Jersey counsel to the applicable MortgagesBorrower, or has made arrangements satisfactory ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Canadian counsel to the Borrower, and such other opinions as may be agreed, addressed to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice 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 Exiting Lendersaccrued fees and expenses of counsel to the Joint Lead Arrangers and Joint Bookrunners) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingamendment fees payable to the Lenders for which invoices have been received.
Appears in 1 contract
Sources: Five Year Credit Agreement (Jones Apparel Group Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of this Agreement, the date occurrence of the Effective Date and the obligation of the L/C Issuer and each Revolving Lender to make its initial Credit Extension under the Revolving Credit Facility hereunder are subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or facsimiles (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) Responsible Officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each signing Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) a Note executed by the Borrower and dated the Effective Date in favor of each Lender requesting a Note;
(iii) the Omnibus Reaffirmation and the Guaranty, each duly executed by the Credit Parties and dated the Effective Date;
(iv) a modification to the Mortgage, dated as of the Effective Date, duly executed by MDDC, together with evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such modification as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable effectively to create a valid, perfected Lien against the properties and the leasehold interests described therein or purported to be covered thereby;
(v) a modified 110.5 modification endorsement to the A.L.T.A loan policy issued August 6, 2010 by Fidelity National Title Insurance Company in favor of Administrative Agent (the “Existing Title Policy”), which endorsement among other things dates down the effective date of the Existing Title Policy and endorsements thereto, updates the vesting of title to the properties covered by such Existing Title Policy, and insures that there are no additional title or survey exceptions since the original effective date of the Existing Title Policy except as approved by the Administrative Agent in its sole discretion, and/or such other endorsements as are reasonably required by the Administrative Agent;
(vi) evidence of the following insurance coverages:
(A) comprehensive general public liability insurance in an amount reasonably satisfactory to the Administrative Agent and the Borrower covering the Borrower and MDDC;
(B) worker’s compensation insurance (or self insurance therefor) and employer’s liability insurance for the Borrower and MDDC, all in such amounts as may be required by statute;
(C) if commercially available, flood insurance if the Site is located in an area designated by the Secretary of Housing and Urban Development as a special flood hazard area; and
(D) rental or business interruption insurance in an amount not less than $300,000,000 per occurrence, subject to standard deductibles and exclusions;
(vii) a Notice of Special Flood Hazards and Availability of Federal Disaster Relief Assistance duly executed by the Credit Parties which acknowledges that the Site is in an area that has been identified by the director of the Federal Emergency Management Agency as a special flood hazard area and acknowledging the flood insurance requirements applicable in connection therewith;
(viii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ix) 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;
(x) favorable opinions of ▇▇▇▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& ▇▇▇▇▇▇▇▇ Fargo Securities, LLC LLP and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇▇▇, LLP, counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentParties, in each case in form and substance acceptable addressed to the Administrative Agent and its counseleach Lender, as to the matters set forth in Exhibit G;
(exi) a certificate of the General Counsel of a Credit Party or the General Counsel of ▇▇▇▇ stating that each Loan Party has received all governmental consents, licenses and third party consents approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to the transactions contemplated hereby, the obtaining of which it is a condition to the MLP’sparty and that such consents, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained licenses and shall be approvals are in full force and effect;
(fxii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (ib) the representations have been satisfied 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) that since December 31, 20152012, there has been no event material adverse change in the business, operations, debt service capacity, properties, assets, nature of business, liabilities (including environmental liabilities) or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under prospects of the Credit AgreementParties and their Subsidiaries, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have taken as a Material Adverse Effectwhole;
(gxiii) evidence that the Borrower Existing Credit Agreement has paid been, or concurrently with the Effective Date is being, terminated;
(ixiv) fees an Estoppel Certificate from the new ground lessor of certain of the properties covered by the Existing Title Policy in form reasonably acceptable to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and ; provided, however, if such Estoppel Certificate is not obtained by the Arrangers’ reasonable legal fees and expenses Borrower prior to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments that all other conditions precedent to the applicable MortgagesEffective Date have been satisfied, or has made arrangements satisfactory to this condition shall at the Borrower’s request be waived by the Administrative Agent and upon such waiver the Arrangers for payment of Borrower covenants to continue to use commercially reasonable efforts after the Effective Date to obtain and deliver such amounts;
(i) Estoppel Certificate to the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan DocumentsAgent; and
(jxv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4Agent, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of Issuer, the effectiveness of this Fifth AmendmentSwing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) The Effective Date shall have occurred on or before July 26, and such notice shall be conclusive and binding2013.
Appears in 1 contract
Sources: Credit Agreement (Marina District Finance Company, Inc.)
Conditions of Effectiveness. This Fifth Amendment Amended and Restated Credit Agreement shall not be become effective until on and as of the first date each (the “Restatement Effective Date”) on which all of the following conditions precedent has shall have been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the The Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) ’s receipt of the Credit Agreement in the amount following, each of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the executionbe originals, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP e-mail copies (in form and substance reasonably satisfactory to the Administrative Agenta .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed properly executed by a Responsible Officer of the Borrower certifying that signing Loan Party, each dated the Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Effective Date or such later date as may be agreed to by the Administrative Agent) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the representations Affirmation of Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender 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), REIT;
(ii) no Default or Event a Note duly executed by the Borrowers in favor of Default has occurred and is continuing under the Credit Agreement as of such date, each Lender requesting a Note;
(iii) since December 31the Pledge and Security Agreement, 2015duly executed by each Loan Party, there has together with:
(A) certificates or instruments representing the Certificated Securities (as defined in the Pledge and Security Agreement) accompanied by all endorsements and/or powers required by the Pledge and Security Agreement,
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement,
(C) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,
(E) Control Agreements with respect to each Distribution Account of a Loan Party, duly executed by each of the parties thereto,
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement have been no event or circumstance that has or could reasonably be expected to have taken; and
(G) a Material Adverse EffectPerfection Certificate, in substantially the form of Exhibit H-1, duly executed by the REIT;
(iv) there 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 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 a party;
(v) no actionsuch documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, suitand that each Loan Party is validly existing, investigation in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or proceeding is pending oroperation of properties or the conduct of its business requires such qualification, except to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(gvi) the Borrower has paid (i) fees a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the ArrangersLoan Parties, addressed to the Administrative Agent (on behalf of itself and each Lender, as to such matters concerning the Loan Parties and the LendersLoan Documents as the Administrative Agent may reasonably request;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower (x) certifying (A) that the conditions specified in Sections 4.02(a) have been satisfied and (B) that there has not occurred a material adverse change in (1) the business, assets or financial condition of (a) the REIT or (b) the REIT, its Subsidiaries and any of the entities in which they have invested directly or indirectly, taken as a whole or (2) the facts and information, taken as a whole, regarding any such entities as heretofore disclosed to the Administrative Agent and the Lenders and (y) attaching copies of the operating agreements, partnership agreements or other applicable organizational documents of (A) each Affiliated Investor in which all or a portion of its Equity Interests are owned directly by a Loan Party, (B) Colony Funds Sants and (C) Coral Partners;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) completion of all due diligence with respect to the Borrowers, Guarantors, Affiliated Investors, Investment Assets and Collateral in scope and determination satisfactory to the Administrative Agent and Lenders in their sole discretion, including a sampling review of the credit and legal files of the Borrowers, the Guarantors and the Affiliated Investors, review of financial statements and projections, review of governance provisions and review of each Borrower’s underwriting criteria and closing processes as well as its on-going valuation and monitoring methodologies, and other items that Administrative Agent may request;
(xi) the absence of any action, suit, investigation or proceeding, pending or threatened, in any court or before any arbitrator or governmental authority that purports to materially affect any of the Loan Parties, any of their respective Subsidiaries, any Affiliated Investor that owns an Investment Asset or whose Equity Interests are owned (in whole or in part) directly by a Loan Party, or any transaction contemplated hereby, or that could have a material adverse effect on (w) the REIT, (x) the REIT, its Subsidiaries or any of the entities in which they have invested directly or indirectly, taken as a whole, (y) any transaction contemplated hereby or (z) the ability of any Loan Party to perform its obligations under the Loan Documents;
(xii) a Solvency Certificate from the Loan Parties demonstrating that each Loan Party is Solvent;
(xiii) a Compliance Certificate executed by a Responsible Officer of the REIT, giving pro forma effect to the effectiveness of this Agreement;
(xiv) confirmation that the REIT has delivered a written notice to each Departing Lender terminating, as of the date that the other conditions specified in this Section 4.01 are satisfied, all commitments of the Departing Lenders under the Original Credit Agreement, and that all amounts owing (whether or not due) under the Original Credit Agreement and related documents through and including such termination date to each Departing Lender shall have been paid in full; and
(xv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees and expenses due and payable pursuant required to any fee letters applicable to this Fifth Amendment between be paid on or before the Borrower and the Arrangers and Restatement Effective Date shall have been paid.
(iic) Unless waived by the Administrative Agent’s , the Borrowers shall have paid all fees, charges and disbursements of counsel to the Arrangers’ reasonable legal fees Administrative Agent and expenses MLPF&S (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to closing;
(h) or on the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing Restatement Effective Date, plus such additional amounts of such amendments fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the applicable Mortgages, or has made arrangements satisfactory to closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersAgent). Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide have received written notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment Agreement shall not be become effective until as of May 25, 2001, when, and only when, before 3:00 p.m. May 25, 2001, (x) the date Existing Credit Agreements shall have been terminated and all indebtedness and other monetary obligations thereunder shall have been repaid in full by the borrowers thereunder and (y) the Administrative Agent shall have received (i) counterparts of this Agreement executed by the Borrowers, the Administrative Agent and each Lender, (ii) counterparts of the Guarantee executed by the Guarantor and the Administrative Agent and (iii) all of the following conditions precedent has been satisfieddocuments, 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:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) Certified copies of the Credit Agreement in resolutions of the amount Board of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate Directors of each Loan Party, dated as Borrower approving or authorizing approval of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment Agreement and of all documents evidencing other necessary corporate action and governmental and regulatory approvals, if any, with respect to this Agreement.
(Bb) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as A certificate of the Fifth Amendment Effective Date Secretary or contain appropriate attachments, including an Assistant Secretary of each Borrower certifying the names and true signatures of the officers of such Borrower authorized to sign this Agreement and the other documents to be delivered hereunder.
(c) a certificate or articles certificates of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority 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 Loan Party Borrower and a each amendment thereto on file in his office and certifying that (i) such certificate of incorporation or other constitutive documents are true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificatescomplete copies thereof, (ii) a good standing such amendments (if any) are the only amendments to such certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent dateother constitutive documents on file in his office, and (iii) a certificate from the chief financial officer of the such Borrower and the MLP (in form and substance reasonably satisfactory has paid all franchise taxes to the Administrative Agentdate 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 of Cleary, Gottlieb, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (& ▇▇▇▇▇ Fargo Securities▇▇▇▇, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., General Counsel of the Borrowers, and ▇▇▇▇▇▇▇▇ L.L.P.Kraft & ▇▇▇▇, counsel to for the Loan Parties Guarantor, substantially in the form of Exhibit ▇-▇, ▇-▇, and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment D-3, respectively, and as reasonably requested by the Administrative Agent, in each case in form to such other matters as any Lender and substance acceptable to any Swing Line Bank through the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could may reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingrequest.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent's receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or telecopies (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the MLPClosing Date (or, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount case of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate certificates of each Loan Partygovernmental officials, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Closing Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, ▇each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization;
(v) a favorable opinion of Ropes & ▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentBorrower, in each case in form and substance acceptable addressed to the Administrative Agent and its counseleach Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(evi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all governmental material consents, licenses and third party consents approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to the transactions contemplated hereby, the obtaining of which it is a condition to the MLP’sparty, the Borrower’s or their affiliates’ funding obligations under the Credit Agreementand such consents, have been obtained licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(fvii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (ib) 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)have been satisfied, (iiB) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, ; and (vC) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effectcurrent Debt Ratings;
(gviii) such other certificates and documents, consents or opinions as the Administrative Agent reasonably may require, as set forth in the list of closing documents set forth in Exhibit F.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower has shall have paid (i) fees all reasonable fees, charges and disbursements of counsel to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant directly to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) such counsel if requested by the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses ) to the extent invoiced prior to closing;
or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (h) provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersAgent). Without limiting the generality of the provisions of Article IX the last paragraph of the Credit AgreementSection 9.03, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Loan Agreement (Biogen Idec Inc.)
Conditions of Effectiveness. (1) This Fifth Amendment Agreement (other than Section 2 and Section 3 hereof) shall not be become effective until as of the date each of when, and only when, the following conditions precedent has have been satisfied:satisfied (the “Replacement Loan Effective Date”):
(a) Receipt by the Administrative Agent has received (or by the Agent’s counsel on its behalf) of the following, each of which shall be originals or scanned versions (followed promptly by originals) unless otherwise specified, each properly executed by a counterpart Responsible Officer of the signing Loan Party:
(i) counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) Agreement duly executed by the (A) each Replacement Term A Lender, (B) each Borrower, (C) each Guarantor, (D) Citibank, N.A., as the MLP, Existing Agent and as the other Loan Parties, the Administrative Additional Collateral Agent, and (E) Bank of America, N.A., as the LendersNew Agent and as the Agent;
(bii) not later than four (4) Business Days immediately preceding the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory noteReplacement Loan Effective Date, as applicable, one or that is requesting a promissory note pursuant to Section 2.09(a) more Notices of Borrowing delivered in respect of the Replacement Term A Advances and a notice of prepayment as required by Section 2.11 of the Existing Credit Agreement with respect to the Replaced Term Loans (as defined in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Existing Credit Agreement (as amended herebyAgreement); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (iiii) a certificate of a secretary or assistant secretary (or equivalent position) of each Loan Party, dated as together with appropriate attachments which shall include the following items: (A) a true, complete and correct copy of the Fifth Amendment Effective Date and executed articles of incorporation, certificate of limited partnership, certificate of formation or organization or other constitutive document of such Loan Party, to the extent applicable certified by an appropriate officerGovernmental Authority, which shall (AB) certify a true, complete and correct copy of the by-laws, partnership agreement or limited liability company or operating agreement (or other applicable organizational document) of such Loan Party, (C) a certified copy of the resolutions of the board of directors, board of managers or other action appropriate entity of each of the Borrowers and each Guarantor authorizing the execution, delivery and performance by such Person of this Fifth Amendment Agreement and the transactions contemplated hereby and (BD) certify that certain documents previously delivered certificates of legal existence and good standing, to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachmentsextent available, 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 issued by an appropriate Governmental Authority;
(iv) a favorable opinion addressed to the Agent, the Lenders and a true and correct copy of its bylaws or operatingeach Issuing Bank from (i) ▇▇▇▇▇▇▇▇ Chance US LLP, management or partnership agreement, and incumbency certificatesspecial New York counsel to the Loan Parties, (ii) a good standing certificate special counsel for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer certain Subsidiaries of the Borrower and Company in each of the MLP (jurisdictions in which the Agent may reasonably request, in each case, in form and substance reasonably satisfactory to the Administrative Agent; and (iii) King & Wood Mallesons, Australian counsel to the Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventfor those Loan Parties incorporated in Australia;
(dv) a certificate of a Financial Officer of the Administrative Agent has received opinions Company attesting to the Solvency (as defined in the Solvency Certificate) of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (iitaken as a whole) local counsel in each jurisdiction applicable to on the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by Replacement Loan Effective Date from a Responsible Officer of the Company;
(vi) a certificate from a Responsible Officer of each Borrower and each Guarantor (which may be the same Responsible Officer if duly qualified as such for each Borrower and each Guarantor, or for any subset thereof), in form and substance reasonably satisfactory to the Agent and dated as of the Replacement Loan Effective Date, certifying that (ix) no Default or Event of Default has occurred and is continuing and (y) the representations and warranties contained set forth in Article V of the Second Amended and Restated Credit Agreement are true and correct in all material respects on and as of such date (unless respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects as of such earlier date)date and except to the extent that such representations and warranties are already qualified as to materiality, (iiin which case such qualified representations and warranties shall be true and correct; provided that any representations and warranties with respect to the Collateral Documents and related matters specified on Schedule 5.01(m) no Default or Event of Default has occurred hereto shall only be required to be true and is continuing under the Credit Agreement correct as of the time period specified for execution and effectiveness of such dateCollateral Documents and related matters;
(vii) subject to Section 9, satisfactory evidence of the existence of insurance required to be maintained by the Loan Parties, together with customary certificates of insurance and endorsements naming the Agent, on behalf of the Lenders, as an additional insured or lenders’ loss payee, as the case may be, under all such insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iiia) since U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Company and its Subsidiaries for each of the last three fiscal years most recently ended, and (b) unaudited consolidated balance sheets and related statements of income and cash flows of each of Company and its Subsidiaries for each subsequent fiscal quarter ended at least 45 days before the Second Restatement Effective Date and after December 31, 20152013;
(ix) all documentation and other information that is (a) requested by the Agent (including on behalf of a Lender at such Lender’s request) prior to the Replacement Loan Effective Date and (b) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act; and
(x) (A) a standard flood hazard determination form ordered by the Agent evidencing whether each Mortgaged Property in the United States of America is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”) and whether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program, (B) for each Flood Hazard Property, the applicable Loan Party’s written acknowledgment of receipt of written notification from the Agent as to the fact that such Mortgaged Property is a Flood Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program, and (C) for each Flood Hazard Property, copies of the applicable Loan Party’s application for a flood insurance policy plus proof of premium payment, and a declaration page confirming that flood insurance has been issued naming the Agent as sole loss payee on behalf of the Secured Parties.
(b) Since December 31, 2013, there has been no shall not have occurred any event or circumstance condition that has had or could would be reasonably be expected expected, either individually or in the aggregate, to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;.
(gc) the Borrower has paid The Borrowers shall have paid:
(i) all accrued fees to of the ArrangersAgent, of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities LLC, BNP Paribas Securities Corp., Citigroup Global Markets Inc., Crédit Agricole Corporate and Investment Bank, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and RBS Securities, as lead arrangers in respect of this Agreement; and
(ii) all reasonable and documented out-of-pocket expenses of the Administrative Agent Agent, of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities LLC, BNP Paribas Securities Corp., Citigroup Global Markets Inc., Crédit Agricole Corporate and Investment Bank, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and RBS Securities, as lead arrangers in respect of this Agreement (on behalf of itself including the reasonable and the Lenders) and other documented fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower of Shearman & Sterling LLP and the Arrangers and (ii) other, non–United States counsel for the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses ), in each case to the extent invoiced to the Company at least two (2) Business Days prior to closing;the Replacement Loan Effective Date.
(hd) The Borrowers shall have paid all invoiced accrued fees and reasonable and documented out-of-pocket expenses of the Borrower has Existing Agent (iincluding the reasonable and documented fees and expenses of Shearman & Sterling LLP and other counsel for the Existing Agent), in each case to the extent invoiced to the Company at least two (2) delivered Business Days prior to the Replacement Loan Effective Date.
(e) The Agent shall have received an amendment to each applicable Mortgage to extend “Australian Deed of Retirement and Appointment”, duly executed by (A) Citibank, N.A., as the maturity date described therein Existing Agent and as the Additional Collateral Agent, and (iiB) paid funds sufficient to pay any filing or recording tax or fee in connection with Bank of America, N.A., as the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative New Agent and as the Arrangers for payment Agent.
(2) Section 2 of such amounts;this Agreement shall become effective as of the date when, and only when, the following conditions have been satisfied (the “Incremental Effective Date”):
(a) Receipt by the Agent (or by the Agent’s counsel on its behalf) of the following, each of which shall be originals or scanned versions (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party:
(i) counterparts of this Agreement duly executed by (A) each Incremental Term A Lender, (B) each Borrower, (C) each Guarantor, (D) Citibank, N.A., as the Administrative Existing Agent shall have received and as the Additional Collateral Agent, and (on behalf E) Bank of America, N.A., as the Exiting Lenders) funds necessary to pay all principal, interest, fees New Agent and other charges owed to as the Exiting Lenders under the Loan DocumentsAgent; and
(jii) not later than four (4) Business Days immediately preceding the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent Incremental Effective Date, one or the Arrangers. Without limiting the generality more Notice of Borrowing delivered in respect of the provisions of Article IX of Incremental Term A Advances.
(b) The Replacement Loan Effective Date shall have occurred and the Credit Agreement, for purposes of determining compliance with Replacement Loan Refinancing shall have been consummated prior to the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, Incremental Effective Date in accordance with the requirements terms hereof.
(3) Section 3 of this Agreement shall become effective as of the Credit Agreementdate when, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4and only when, the Administrative Agent shall promptly provide written notice to following conditions have been satisfied (the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.“Second Restatement Effective Date”):
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each of the following conditions precedent has been satisfied:
(a) the Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, each of the Existing Lenders and the LendersNew Lender;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 20152018, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate Affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(d) the Administrative Agent has received (1) a certificate of each Loan Party, dated as of the Ninth Amendment Effective Date and executed by an appropriate officer, which shall (a) certify the resolutions or other action authorizing the execution, delivery and performance of this Ninth Amendment and (b) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Ninth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, and (2) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date;
(e) the Administrative Agent has received a certificate from a financial officer of the Borrower certifying that after giving pro forma effect to this Amendment, the MLP, the Borrower and their respective Subsidiaries (on a consolidated basis) are Solvent as of the Ninth Amendment Effective Date;
(f) the Administrative Agent has received an opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent;
(g) the Administrative Agent has received from the Borrower has paid and/or the other Loan Parties (i) all fees agreed to in writing by the Borrower that are due and payable and owed to the Administrative Agent, the Arrangers, their respective Affiliates, the Administrative Agent (on behalf Existing Lenders or the New Lender, in each case in connection with the execution of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers Amendment, and (ii) all reasonable and documented out-of-pocket fees and expenses of the Administrative Agent and its Affiliates in connection with the preparation, negotiation, syndication and execution of this Amendment, including, without limitation, the reasonable and documented out-of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses , in all cases that are invoiced to the extent invoiced Borrower at least two (2) Business Days prior to closingthe Ninth Amendment Effective Date;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) has received, or will receive substantially concurrently with the effectiveness of this Amendment, in connection with the reallocation and termination of the Commitments of, and the payment in full of Committed Loans of, the Exiting Lenders contemplated by this Amendment, immediately available funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(ji) the Administrative Agent has received such all documentation and other documents information about the Loan Parties as may be shall have been reasonably required requested by the Administrative Agent or the ArrangersArrangers in respect of applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, (a) the Act and, (b) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 45, each Existing Lender (other than an Exiting and the New Lender) , as applicable, that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 45, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or to be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 45, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including Existing Lenders, the Exiting Lenders) New Lender and the L/C Issuer Issuers of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be effective until The effectiveness of the date each amendment and restatement of the Existing Credit Agreement is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or telecopies (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) Responsible Officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each signing Loan Party, each dated as the Closing Date (or, in the case of the Fifth Amendment Effective Date and executed by an appropriate officercertificates of governmental officials, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, date before the Closing Date) and (iii) a certificate from the chief financial officer of the Borrower and the MLP (each in form and substance reasonably satisfactory to the Administrative Agent: ActiveUS 170689984v.4
(i) executed counterparts of this Agreement and the Guaranties, ▇▇▇▇▇ Fargo Securitiessufficient in number for distribution to the Administrative Agent, LLC each Lender and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventBorrowers;
(dii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) such certificates of resolutions or other equivalent action and incumbency certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably request evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably request to evidence that each Loan Party is validly existing and in good standing and qualified to engage in business in its jurisdiction of organization;
(v) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) other than as publicly disclosed prior to October 29, 2018, that there has received 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; (C) the current Debt Ratings and (D) that, except as set forth on Schedule 5.06(b), there are no actions, suits, investigations or proceedings pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect; and
(vi) opinions of (i) Tarrant Sibley, Esq., Senior Vice President and Deputy General Counsel of the Company, substantially in the form of Exhibit I-1 hereto, (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President, European Legal General Secretary, Hasbro SA, substantially in the form of Exhibit I-2 hereto and (iii) ▇▇▇▇▇▇ L.L.P.▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, special New York counsel to the Loan Parties and (ii) local counsel Parties, substantially in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;of Exhibit I-3 hereto.
(eb) all governmental All accrued and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained invoiced fees and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer expenses of the Borrower certifying that (i) 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Lead Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other Lenders (including the fees and expenses due and payable of counsel for the Administrative Agent) required to be paid on or before the Closing Date shall have been paid.
(c) All obligations under the Existing Credit Agreement (other than obligations in respect of Existing Letters of Credit which shall be deemed to be Letters of Credit issued under this Agreement pursuant to any fee letters applicable Section 10.21) shall have been paid in full and all commitments thereunder of lenders party thereto who are not parties to this Fifth Amendment between Agreement shall have been terminated and all commitments thereunder of the Borrower Lenders party to this Agreement shall be evidenced only by this Agreement.
(i) Upon the reasonable request of any Lender made at least 10 business days prior to the Closing Date, the Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the Arrangers documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and ActiveUS 170689984v.4 regulations, including, without limitation, the PATRIOT Act, in each case at least 5 business days prior to the Closing Date and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses at least 5 business days prior to the extent invoiced prior to closing;
(h) Closing Date, any Borrower that qualifies as a “legal entity customer” under the Borrower has (i) delivered an amendment Beneficial Ownership Regulation shall have delivered, to each applicable Mortgage Lender that so requests, a Beneficial Ownership Certification in relation to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the ArrangersBorrower. Without limiting the generality of the provisions of Article IX of the Credit AgreementSection 9.04, for purposes of determining compliance with the conditions specified in this Section 44.01, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment Waiver and Eighth Amendatory Agreement shall not be effective until operative as of the date each hereof but shall become effective when, and only when, the Agent shall have received (x) 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 Waiver and Eighth Amendatory Agreement executed by the Borrower and the Lenders or, as to any of said Lenders, advice satisfactory to the Agent that such Lender has executed this Waiver and Eighth Amendatory Agreement and (z) all of the following conditions precedent has been satisfieddocuments, each document (unless otherwise indicated) being dated the date hereof, in form and substance satisfactory to the Agent:
(a) a certificate of the Administrative Agent has received a counterpart 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 Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative AgentWaiver and Eighth Amendatory Agreement, and the Lendersother documents to be delivered hereunder;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer duly authorized officer of the Borrower certifying that stating that:
(i) the representations and warranties contained of the Borrower as set forth in Article V IV of the Credit Agreement and in any documents delivered therewith, including the Loan Documents, are true and correct in all material respects on and as of the date of such certificate as though made on and as of such date (unless except insofar as such representations and warranties specifically refer relate expressly to an earlier date or are based on the accuracy of schedules prepared as of a prior date, in which case such ),
(ii) the representations and warranties shall be true contained in Section 4 hereof are correct on and correct in all material respects as of the date of such certificate as though made on and as of such earlier date), and
(iiiii) after giving effect to this Waiver and Eighth Amendatory Agreement, no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effectcontinuing;
(gc) the Borrower has paid certified copies of (i) fees the resolutions of the Board of Directors of the Borrower and of the Guarantor approving this Waiver and Eighth Amendatory Agreement and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Arrangers, the Administrative Agent (on behalf of itself this Waiver and Eighth Amendatory Agreement and the Lendersmatters contemplated hereby;
(d) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between a favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses Guarantor, in a form reasonably acceptable to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(je) an amendment to the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality existing deeds of trust in favor of the provisions of Article IX of the Credit AgreementAgent, for purposes of determining compliance together with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice endorsements to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer title insurance policies in force with respect to such deeds of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingtrust.
Appears in 1 contract
Conditions of Effectiveness. This Fifth The amendments to the Credit Agreement set forth in Section 2 of this Second Amendment shall not be effective until the date (such date, the “Second Amendment Effective Date”) each of the following conditions precedent has been satisfiedsatisfied in full:
(a) the The Administrative Agent has shall have received the following:
(i) a counterpart of this Fifth Second Amendment executed by each of the parties hereto (which may be by telecopy or other electronic transmission);
(ii) Notes executed by the BorrowerBorrower in favor of those Lenders increasing their Committed Sums requesting such Notes, each in a principal amount equal to each such Lender’s Pro Rata Share of the MLPRevolver Facility and Term Loan Facility after giving effect to this Second Amendment; and
(iii) from each Loan Party, such certificates of secretary, assistant secretary, manager, or general partner, as applicable, as the Administrative Agent may require, certifying (A) resolutions authorizing the increase in the Aggregate Committed Sum and the execution and performance of this Second Amendment and the other Loan PartiesDocuments which such Person is executing in connection herewith, (B) the Administrative Agentincumbency and signature of the officer executing such documents, and the Lenders;(C) that there has been no change in such Person’s Organization Documents since June 30, 2006 (or, if there has been a change, attaching a copy thereof).
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory noteAll fees, as applicablecosts, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable at the Second Amendment Effective Date shall have been paid (including, without limitation but without duplication, the fees required to be paid pursuant to any fee letters applicable to this Fifth Amendment the Fee Letter dated as of December 6, 2007, between the Borrower and Royal Bank of Canada, and any expenses arising pursuant to Section 3.05 of the Arrangers Credit Agreement as a result of any prepayment of Committed Revolver Loans in connection with the increase in the Revolver Commitment), and (ii) the Borrower shall have paid Attorney Costs of the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses Agent to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgagesto, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4on, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingSecond Amendment Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the first date each of (the “First Amendment Effective Date”) on which the following conditions precedent has shall have been satisfied:satisfied (or waived by the Agent and the Purchasing Term Lender):
(a) the Administrative Agent has shall have received a counterpart (i) counterparts of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLPAgent and the Purchasing Term Lender, (ii) from each of the Consenting Lenders that, collectively, constitute the Required Lenders before giving effect to the Non-Consenting Lender Assignments, a duly executed Lender Consent and (iii) after giving effect to the Non-Consenting Lender Assignments and the operation of the proviso set forth in Section 9.04(b)(ii)(C) of the Credit Agreement, a Lender Consent duly executed by the Purchasing Term Lender and the other Loan Parties, the Administrative Agent, and the Consenting Lenders constituting all Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such extent requested by the Agent, the Agent and the Purchasing Term Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has shall have received (i) a certificate of each Loan Party, dated as of the Fifth First Amendment Effective Date and executed by an appropriate officerits Secretary, Assistant Secretary or director, which shall (A) certify the resolutions of its Board of Directors, members or other action body authorizing the execution, delivery and performance of this Fifth Amendment (and any agreements relating thereto) to which it is a party, (B) certify that certain documents previously delivered to identify by name and title and bear the Administrative Agent are in full force and effect as signatures of the Fifth other officers of such Loan Party authorized to sign the Amendment Effective Date or (and any agreements relating thereto) to which it is a party, (C) either (1) contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each such Loan Party (and in the case of any such Loan Party, certified by the relevant authority of the jurisdiction of organization of such Loan Party Party), and a true and correct copy of its bylaws by-laws, memorandum and articles of incorporation or operating, management management, partnership or partnership agreementequivalent agreement to the extent applicable, in each case, certified as of a recent date or (2) include a written certification by such Loan Party’s secretary, assistant secretary or other Responsible Officer that such Loan Party’s certificate or articles of incorporation or organization or other applicable constitutive documents most recently certified and incumbency certificatesdelivered to the Agent prior to the First Amendment Effective Date pursuant to the Loan Documents remain in full force and effect on the First Amendment Effective Date without modification or amendment since such original delivery and (D) either (1) attach copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Amendment and certify that such consents, licenses and approvals are in full force and effect, or (2) state that no such consents, licenses or approvals are so required and (ii) a good standing certificate for each Loan Party from the applicable governmental authority of its jurisdiction of incorporation or organization as of a recent date, incorporation;
(c) the Agent and (iii) the Purchasing Term Lender shall have received a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower dated the First Amendment Effective Date certifying that (ia) the representations and warranties contained of each Loan Party set forth in Article V Section 4 of the Credit Agreement are this Amendment shall be true and correct in all material respects on and as of such date (unless the First Amendment Effective Date before and after giving effect to this Amendment; provided that, to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case such representations and warranties they shall be true and correct in all material respects as of such earlier date (excluding the representation set forth in Section 3.15(a) of the Credit Agreement which shall be true and correct in all material respects as of the First Amendment Effective Date after giving effect to this Amendment); provided further that any representation and warranty that is qualified as to materiality or “Material Adverse Effect” shall be true and correct in all respects on the First Amendment Effective Date or on such earlier date), as the case may be after giving effect to any such qualification as to materiality or “Material Adverse Effect” and (iib) no Default or Event of Default has shall have occurred and is be continuing under both before and after giving effect to this Amendment;
(d) the Credit Agreement as Agent (or its counsel) shall have received a favorable written opinion of such date(i) ▇▇▇▇▇, ▇▇▇▇ & ▇’▇▇▇▇▇▇▇▇, P.C., counsel for the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties and (iii) since December 31Terschan, 2015▇▇▇▇▇▇▇, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect▇▇▇▇▇ & ▇▇▇▇▇▇ LTD, Wisconsin counsel for the Loan Parties, in each case (A) dated the First Amendment Effective Date, (ivB) there is no litigationaddressed to the Agent, investigation or proceeding known the Purchasing Term Lender and the Consenting Lenders and (C) in form and substance reasonably satisfactory to the Agent and affecting the Borrower or any affiliate for which the Borrower is required to give notice covering such customary matters under the Credit Agreement, and (v) no action, suit, investigation or proceeding laws of the respective jurisdiction in which such counsel is pending or, admitted to practice relating to the knowledge of such officerAmendment and the transactions contemplated hereby, threatened in any court or before any arbitrator or Governmental Authority by or against as the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could Agent shall reasonably be expected to have a Material Adverse Effectrequest;
(ge) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf a customary certificate from the chief financial officer of the Exiting Lenders) funds necessary to pay all principalBorrower certifying that the Borrower and its Subsidiaries, interest, fees and other charges owed on a consolidated basis on the First Amendment Effective Date after giving effect to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.are solvent (within the meaning of Section
Appears in 1 contract
Sources: Credit Agreement (Clean Harbors Inc)
Conditions of Effectiveness. This Fifth Amendment shall not be effective until the date each The availability of Credit Extensions is subject to satisfaction of the following conditions precedent has been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment which shall be originals or facsimiles (which may be followed promptly by telecopy or other electronic transmissionoriginals) unless otherwise specified, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) Responsible Officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each signing Loan Party, each dated as of the Fifth Amendment Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Effective Date) and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery each in form and performance of this Fifth Amendment and (B) certify that certain documents previously delivered substance satisfactory to the Administrative Agent are in full force and effect as each of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles Lenders:
(i) executed counterparts of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower this Agreement and the MLP (Disclosure Letter, sufficient in form and substance reasonably satisfactory number for distribution to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC each Lender and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solventBorrower;
(dii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent has received 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing in its jurisdiction of formation or incorporation;
(v) favorable opinions of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ L.L.P.▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative AgentParties, in each case in form and substance acceptable addressed to the Administrative Agent and its counseleach Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request;
(evi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all governmental consents, licenses and third party consents approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to the transactions contemplated hereby, the obtaining of which it is a condition to the MLP’sparty, the Borrower’s or their affiliates’ funding obligations under the Credit Agreementand such consents, have been obtained licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(fvii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (ib) the representations and warranties contained in Article V have been satisfied;
(viii) a duly completed pro forma Compliance Certificate as of the Credit last day of the fiscal quarter of the Borrower most recently ended prior to the Restatement Effective Date for which financial statements are available, and utilizing the covenant levels for the Fiscal Quarter ending December, 2012, signed by a Responsible Officer of the Borrower;
(ix) reaffirmations of the Collateral Documents and the Guaranty by each Loan Party (other than, in the case of the Guaranty, the Borrower), in form and substance reasonably acceptable to the Administrative Agent, together with evidence (A) that all proper filings and financing statements in a form acceptable to the Administrative Agent shall have been filed under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, and with the priority described in the Security Agreement are true (which evidence may be in the form of copies of federal trademark, copyright and correct patent searches, and UCC and federal and state tax lien searches in the applicable jurisdictions, in each case described in and attached to, and subject to acceptable disclosures in, the Disclosure Letter), and (B) that insurance in types and amounts acceptable to the Administrative Agent and the Lenders shall be in place with respect to the Borrower and the Guarantors and their respective properties forming part of the Collateral, which insurance policies shall contain endorsements naming the Administrative Agent as an additional insured or loss payee, as the case may be (which evidence may be in the form of copies of insurance policy endorsements described in and attached to, and subject to acceptable disclosures in, the Disclosure Letter);
(x) copies of definitive legal documents relating to the issuance of the New Senior Secured Notes, including the New Senior Notes Indenture (including all material respects attachments and exhibits thereto), the Intercreditor Agreement and the offering memorandum for the New Senior Secured Notes, each in form and substance acceptable to the Administrative Agent and each Lender; provided that, if any such document shall be in draft form only on and as the date of this Agreement, without prejudice to Section 4.02(c), this condition may be satisfied on the basis of such date draft; and
(unless xi) such representations and warranties specifically refer to an earlier dateother assurances, in which case such representations and warranties certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender may reasonably may require.
(b) There shall be true and correct in all material respects as of such earlier date), (ii) no Default or Event of Default has not have occurred and is continuing under the Credit Agreement as of such date, (iii) since December 3125, 20152011, there has been no any event or circumstance condition that has had or could be reasonably be expected expected, either individually or in the aggregate, to have have, a Material Adverse Effect, .
(ivc) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) There shall be no action, suit, investigation or proceeding is pending or, to the knowledge of such officerthe Borrower, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties governmental authority that could reasonably be expected to have a Material Adverse Effect;.
(gd) Any fees required to be paid on or before the Restatement Effective Date shall have been paid.
(e) Unless waived by the Administrative Agent, the Borrower has shall have paid (i) fees all reasonable fees, charges and disbursements of counsel to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;or on the Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(hf) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent The Restatement Effective Date shall have received (occurred on behalf of the Exiting Lenders) funds necessary to pay all principalor before December 21, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers2012. Without limiting the generality of the provisions of Article IX of the Credit AgreementSection 9.04, for purposes of determining compliance with the conditions specified in this Section 44.01 and the consent required under Section 10.01(a), each Lender (other than an Exiting Lender) that has signed this Fifth Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document delivered or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented delivered pursuant to or approved by or be acceptable or satisfactory Section 4.01(a), and the facts and circumstances pertaining to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Sections 4.01(b) and (c), and not to require any additional documentation under Section 44.01(a)(xi), unless the Administrative Agent shall promptly provide written have received notice from such Lender prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingproposed Restatement Effective Date specifying its requirements or objection with respect thereto.
Appears in 1 contract
Sources: Credit Agreement (McClatchy Co)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedent has shall have been satisfied:
(a) the The Administrative Agent has received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrowershall have received, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative AgentAgent (x) counterparts of this Amendment executed by the Borrower, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions and those Lenders whose consent is required under Section 9.01 of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.the Existing Credit Agreement or, counsel as to any of such Lenders, advice satisfactory to the Loan Parties Administrative Agent that such Lender has executed this Amendment, and (iiy) local counsel the consent attached hereto (the “Consent”) executed by each of the Guarantors.
(b) The Successor Agency Documentation shall have been executed and delivered and, subject only to Section 4 hereof, become effective, and Bank of America, N.A. shall have succeeded DBNY as administrative agent under the Existing Credit Agreement.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or managing member thereof certifying as to the matters required by the certificate described in Section 3.01(a)(viii) of the Existing Credit Agreement, in each jurisdiction applicable case as of the Amendment Effective Date, (b) a certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agenteach Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, in each case in form and substance acceptable to the Administrative Agent of all documents evidencing other necessary corporate action and its counsel;
(e) all governmental and other third party consents approvals and consents, if any, with respect to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained Loan Documents and shall each Loan Document to which it or such Loan Party is or is to be in full force and effect;a party.
(fd) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the The Administrative Agent shall have received (on behalf evidence of the Exiting Lenders) funds necessary to pay all principalexecution, interest, fees delivery and other charges owed substantially concurrent effectiveness of an amendment to the Exiting Lenders under 2018 Term Loan Agreement, in form and substance satisfactory to the Loan Documents; andAdministrative Agent, modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(je) (i) the fees provided for in Section 5 and (ii) all of the reasonable out-of-pocket expenses of the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lendersreasonable fees and expenses of counsel for the Administrative Agent) due and L/C Issuer of payable on the effectiveness of this Fifth Amendment, and such notice Amendment Effective Date shall be conclusive and bindinghave been paid in full.
Appears in 1 contract
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until the date each of the following conditions precedent has been satisfied:
when, and only when, (a) the Administrative Agent has Noteholder shall have received a counterpart of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) all of the Credit Agreement in following documents, each (unless otherwise indicated) being dated the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Partydate hereof, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets Noteholder:
(▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)i) certifying that, after giving pro forma effect to executed originals of each of this Fifth Amendment, the MLPNotes, the Borrower initial Facility Guaranties, the initial Security Documents and their subsidiaries (on a consolidated basis) are solventthe other Related Documents, together with all schedules and exhibits thereto;
(dii) the Administrative Agent has received favorable written opinions with respect to the Related Documents and the transactions contemplated thereby of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special counsel to the Loan Credit Parties (including special indenture counsel) in the jurisdictions of North Carolina, South Carolina, New York and (ii) local counsel in each jurisdiction applicable Mexico, dated the Effective Date, addressed to the transactions contemplated by this Fifth Amendment Noteholder and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable satisfactory to the Administrative Agent and its counsel;
(eiii) all governmental resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of each Credit Party certified by its secretary or assistant secretary as of the Effective Date, approving and third party consents adopting the Related Documents to be executed by such Credit Party, and authorizing the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained execution and shall be in full force and effectdelivery thereof;
(fiv) specimen signatures of officers or other appropriate representatives executing the Administrative Agent has received a certificate signed by a Responsible Officer Related Documents on behalf of the Borrower certifying that (i) the representations and warranties contained in Article V each of the Credit Agreement are Parties, certified by the secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the Credit Parties certified as of a recent date by the Secretary of State of its state of organization;
(vi) Operating Documents of each of the Credit Parties certified as of the Effective Date as true and correct in all material respects on and by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of each of the Credit Parties as to the due existence and good standing of such Credit Party;
(viii) appropriate certificates of qualification to do business, good standing and, where appropriate, authority to conduct business under assumed name, issued in respect of each of the Credit Parties as of a recent date (unless such representations and warranties specifically refer to an earlier date, by the Secretary of State or comparable official of each jurisdiction in which case such representations and warranties shall the failure to be true and correct in all material respects as of such earlier date), (ii) no Default qualified to do business or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or authorized so to conduct business could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(gix) a Compliance Certificate as of the Borrower has paid (i) fees end of the fiscal quarter most recently ended prior to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closingEffective Date;
(hx) evidence of the Borrower has filing of Uniform Commercial Code financing statements reflecting the filing in all places required by applicable law to perfect the General Liens of the General Collateral Agent under the General Security Instruments and the Priority Liens of the Priority Collateral Agent under the Priority Security Instruments, as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the General Liens of the General Collateral Agent under the General Security Instruments and the Priority Liens of the Priority Collateral Agent under the Priority Security Instruments, as the General Collateral Agent or Priority Collateral Agent may require, including without limitation the delivery by the Company of all certificates evidencing Pledged Interests, accompanied in each case by duly executed stock powers (ior other appropriate transfer documents) delivered in blank affixed thereto;
(xi) executed originals of the Collateral Agency Agreements and the Senior Debt Intercreditor Agreement;
(xii) executed originals of the Securitization Intercreditor Agreement and the Leased Facility Intercreditor Agreement;
(xiii) copies of the Senior Indenture, the Credit Agreement, the ▇▇▇▇▇▇ Swap Agreement, the Receivables Transfer Agreement, the Receivables Purchase Agreement and the Senior Lease Documents, together with all material agreements executed in connection therewith, and amendments of each of the foregoing, each in form and substance acceptable to the Noteholder, certified as true and correct and in full force and effect by an amendment authorized officer of the Company;
(xiv) Uniform Commercial Code search results as of a recent date showing only those Liens as are acceptable to each applicable Mortgage to extend the maturity date described therein and Noteholder;
(iixv) paid funds sufficient to pay delivery of Material Real Property Support Documents as may be required by any filing or recording tax or fee governmental authority in connection with the filing delivery of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amountsany Mortgage;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Note Agreement (Cone Mills Corp)
Conditions of Effectiveness. This Fifth Amendment shall not be become effective until as of the date each of Amendment Effective Date when, and only when, the following conditions precedent has have been satisfied:
(a) The Agent’s receipt of the Administrative Agent has received a counterpart following, each of this Fifth Amendment (which may shall be by telecopy originals or other electronic transmission) copies unless otherwise specified, each properly executed by the Borrower, the MLP, the other Loan Parties, the Administrative Agent, and the Lenders;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) duly authorized officer of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each signing Loan Party, each dated as of the Fifth Amendment Effective Date and executed by an appropriate officer(or, which shall (A) certify in the resolutions or other action authorizing case of certificates of governmental officials, a recent date before the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of Date) and each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets :
(▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, togetheri) executed counterparts of this Amendment executed by the Original Required Lenders, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLPNew Lenders, the Borrower and their subsidiaries the Agent;
(ii) certified copies of the resolutions of the board of directors or equivalent governing body of each Loan Party approving the Amendment Transactions, this Amendment, the Second Amended and Restated Credit Agreement and each other Loan Document to which it 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 Amendment Transactions, this Amendment, the Second Amended and Restated Credit Agreement and each other Loan Document to which it is a party;
(iii) a copy of the certificate of the Secretary of State of the jurisdiction of incorporation or formation, as the case may be, of each Loan Party, dated a recent date before the Amendment Effective Date, certifying (A) as to a true and correct copy of the charter, article of formation, or such other constitutive document on file in such Secretary’s office and (B) that (1) such Loan Party has paid all franchise taxes to the date of such certificate and (2) such Loan Party is duly incorporated or formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of incorporation or formation;
(iv) a certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President and its Secretary, any Assistant Secretary or a duly authorized person, dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of the Amendment Effective Date), certifying as to (A) the absence of any amendments to the charter or applicable constitutive documents of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 4(a)(iii) above, (B) a true and correct copy of the bylaws, limited liability company agreement, or partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section 4(a)(ii) above were adopted and on the Amendment Effective Date and (C) the due incorporation or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership organized or formed under the laws of the jurisdiction of its incorporation or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party;
(v) a certificate of the Secretary, an Assistant Secretary or a duly authorized person of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(vi) a certificate signed by a Responsible Officer, or a duly authorized person, of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) of the Second Amended and Restated Credit Agreement have been satisfied;
(vii) certificates attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis) are solvent;basis before and after giving effect to the Amendment Transactions, from its chief financial officer.
(dviii) Notes executed by the Borrower in favor of each Lender that has requested Notes at least 2 Business Days prior to the Amendment Effective Date; and
(ix) the Administrative Agent has received opinions executed opinion of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties Parties, addressed to the Agent and each Lender, substantially as to the matters set forth, mutatis mutandis, in Exhibit H to the Original Credit Agreement.
(b) The New Lenders shall have received, to the extent requested, on or before the date which is two (2) Business Days prior to the Amendment Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including the PATRIOT Act.
(c) (x) Any fees, costs and expenses required to be paid on or before the Amendment Effective Date to the Agent or any Arranger (i) pursuant to any fee or engagement letters or (ii) local counsel in each jurisdiction applicable otherwise for which invoices have been received at least one Business Day prior to the transactions contemplated by Amendment Effective Date, (y) an amendment fee to each Original Lender that has executed this Fifth Amendment and as reasonably requested by the Administrative AgentAmendment Effective Date in an aggregate amount equal to 0.375% of such Original Lender’s Revolving Credit Commitment immediately prior to the Amendment Effective Date (the “Original Commitment”) and (z) a fee to each applicable Revolving Lender that has provided new commitments under the Revolving Facility in an amount equal to 0.50% of the amount of such Lender’s Revolving Credit Commitment on the Amendment Effective Date in excess of such Lender’s Original Commitment, in each case in form shall have been paid.
(d) Unless waived by the Agent, the Borrower shall have paid all reasonable fees, charges and substance acceptable disbursements of counsel to the Administrative Agent and its counsel;
(edirectly to such counsel if requested by the Agent) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition extent invoiced at least one Business Day prior to the MLP’sAmendment Effective Date, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects on and as plus such additional amounts of such date (unless such representations fees, charges and warranties specifically refer to an earlier date, in which case such representations and warranties disbursements as shall be true and correct in all material respects as constitute its reasonable estimate of such earlier date)fees, charges and disbursements incurred or to be incurred by it through the closing and customary post-closing proceedings included in such invoices (ii) no Default or Event provided, that such estimate shall not thereafter preclude a final settling of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event or circumstance that has or could reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment accounts between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;).
(he) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein The conversions, payments and (ii) paid funds sufficient to pay any filing or recording tax or fee repayments specified in connection with the filing of such amendments to the applicable MortgagesSection 6 below shall have been completed and made, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;as applicable.
(if) the The Administrative Agent shall have received (on behalf satisfactory evidence that all outstanding indebtedness of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders Loan Parties under the Loan Documents; andExisting Senior Notes shall have been redeemed, defeased and repaid in full prior to or substantially concurrently with the occurrence of the Amendment Effective Date.
(jg) The Borrower shall have received, substantially simultaneously with the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality occurrence of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender Amended Effective Date (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions each other condition set forth in this Section 4), gross cash proceeds of not less than $600,000,000 from the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer issuance of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingSenior Notes.
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Conditions of Effectiveness. This Fifth Amendment shall not be become effective until on the first date on which each of the following conditions precedent has shall have been satisfied:satisfied or waived in writing (such date being referred to herein as the “Third Amendment Effective Date”):
(a) the Administrative Agent has shall have received a counterpart counterparts of this Fifth Amendment (which may be duly executed and delivered by telecopy or other electronic transmission) executed by each of the Borrower, the MLP, the other Loan Parties, the Administrative Agent, each Incremental Term Loan Lender and the Lenderseach other Lender;
(b) the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendmentthe 2025 Incremental Term Loan Facility and the use of proceeds thereof, the MLP, the Borrower and their subsidiaries (on a consolidated basis) are solvent;
(d) the Administrative Agent has received opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (ii) local counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, in each case in form and substance acceptable to the Administrative Agent and its counsel;
(e) all governmental and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower certifying that (i) the representations and warranties contained in Article V of the 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), (ii) no Default or Event of Default has occurred and is continuing under on the Third Amendment Effective Date or would (giving effect to this Amendment) result therefrom;
(c) immediately before and after giving effect to the 2025 Incremental Term Loan Facility and the loans to be made thereunder on the Third Amendment Effective Date (giving effect to this Amendment), the representations and warranties contained in Section 4 of this Amendment are true and correct in all material respects, or, in the case of the representations set forth in Sections 5.15(b) and 5.19 of the Existing Credit Agreement as of such date, (iii) since December 31, 2015, there has been no event and the Amended Credit Agreement and any other representation and warranty that is qualified by materiality or circumstance that has or could reasonably be expected to have a Material Adverse Effect, are true and correct, on and as of the Third Amendment Effective Date;
(ivd) there is no litigation, investigation the Administrative Agent shall have received a certificate of each Loan Party dated as of the Third Amendment Effective Date signed by a Responsible Officer of such Loan Party certifying and attaching the resolutions adopted by such Loan Party approving or proceeding known consenting to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement2025 Incremental Term Loan Facility, and (vy) no action, suit, investigation or proceeding is pending or, to in the knowledge case of such officer, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, certifying that the MLP’s general partner, or any of their respective properties that could reasonably be expected to conditions in clauses (b) and (c) above have a Material Adverse Effectbeen satisfied;
(g) the Borrower has paid (i) fees to the Arrangers, the Administrative Agent (on behalf of itself and the Lenders) and other fees and expenses due and payable pursuant to any fee letters applicable to this Fifth Amendment between the Borrower and the Arrangers and (ii) the Administrative Agent’s and the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(ie) the Administrative Agent shall have received (i) a Term A-2 Note (as defined in the Amended Credit Agreement) executed by the Borrower in favor of each Incremental Term Loan Lender requesting a Term A-2 Note (as defined in the Amended Credit Agreement) and (ii) a Term A-1 Note (as defined in the Amended Credit Agreement) executed by the Borrower in favor of each Term A-1 Lender (as defined in the Amended Credit Agreement) requesting a Term A-1 Note to replace the Term Note issued to such Lender under the Existing Credit Agreement;
(f) all fees required to be paid by the Borrower on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed or prior to the Exiting Lenders under Third Amendment Effective Date pursuant to the Loan Documents and all expenses required to be reimbursed by the Borrower on or prior to the Third Amendment Effective Date pursuant to the Loan Documents shall have been paid;
(g) the Administrative Agent shall have received a favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Loan Parties and the Loan Documents, including the 2025 Incremental Term Loan Facility, as the Administrative Agent may reasonably request; and
(jh) upon the Administrative Agent has received such other documents as may be reasonably required by reasonable request of the Administrative Agent or any Lender participating in the Arrangers. Without limiting Incremental Revolving Commitment made at least 10 days prior to the generality of Third Amendment Effective Date, the provisions of Article IX of Borrower shall have provided to the Credit AgreementAdministrative Agent or such Lender, for purposes of determining compliance with the conditions specified in this Section 4as applicable, each and such Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be reasonably satisfied with, each document or the documentation and other matter required under this Section 4information so requested in connection with, the USA PATRIOT Act, “know your customer” requirements, anti-money laundering requirements and the Beneficial Ownership Regulation (including a Beneficial Ownership Certification) and other customary requirements, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Credit Agreement) of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice case at least five days prior to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingThird Amendment Effective Date.
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Conditions of Effectiveness. This Fifth Amendment, the agreements set forth in Section 3 and each First Amendment Lender’s obligation to provide the First Amendment Loans pursuant to this Amendment shall not be become effective until as of the first date each on which all of the following conditions precedent has been satisfied:are satisfied (or waived by the First Amendment Lenders and the Lenders in accordance with Section 10.2 of the Credit Agreement):
(a) the Administrative Agent has received receipt by each party hereto of a counterpart copy of this Fifth Amendment (which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the each other Loan PartiesParty party hereto, each First Amendment Lender, each Prior Lender and the Administrative Agent, and the Lenders;
(b) receipt by 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(aits counsel) 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 following, each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(c) the Administrative Agent has received (i) a certificate of each Loan Party, dated as of the Fifth Amendment Effective Date and executed by an appropriate officer, which shall (A) certify the resolutions or other action authorizing the execution, delivery and performance of this Fifth Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the Fifth Amendment Effective Date or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, (ii) a good standing certificate for each Loan Party from its jurisdiction of incorporation or organization as of a recent date, and (iii) a certificate from the chief financial officer of the Borrower and the MLP (in form and substance reasonably satisfactory to the Administrative AgentAgent and the Lenders:
(i) a First Amendment Fee Letter, ▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets (▇▇▇▇▇ Fargo Securities, LLC and RBC Capital Markets, together, the “Arrangers”)) certifying that, after giving pro forma effect to this Fifth Amendment, the MLP, duly executed by the Borrower and their subsidiaries (on a consolidated basis) are solventthe Administrative Agent;
(dii) a Perfection Certificate, dated as of the date hereof, duly executed by each Loan Party in favor of the Administrative Agent has received and the Lenders;
(iii) results of customary lien and judgment searches with respect to each Loan Party;
(iv) a completed Committed Loan Notice, duly executed by a Responsible Officer of the Borrower with respect to the Credit Extension to be made on the First Amendment Effective Date;
(v) a certificate of a Responsible Officer of each Domestic Loan Party attaching (a) its articles or certificate of incorporation, certificate of formation, articles of organization or certificate of partnership, as applicable, or equivalent thereof as in effect on the date hereof (including any amendments thereto), certified (as of a date reasonably near the First Amendment Effective Date) as being a true and correct copy thereof by the secretary of state or other applicable Governmental Authority of the jurisdiction in which such Domestic Loan Party is organized, (b) its bylaws, limited liability company agreement, declaration of sole member or partnership agreement, as applicable, or equivalent thereof as in effect on the date hereof (including any amendments thereto), (c) the resolutions of its board of directors, board of managers, sole member or comparable body, as applicable, authorizing the execution, delivery and performance of the Loan Documents to which it is a party or any other document delivered in connection herewith on the First Amendment Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect, (d) certifying the name, title and true signature of each officer of such Domestic Loan Party with authority to execute this Amendment and any other Loan Documents and (e) certificates of good standing, existence, or similar, as applicable, certified as of a recent date by the secretary of state or equivalent of the jurisdiction of such Domestic Loan Party’s jurisdiction of organization;
(vi) a corporate certificate of a director of each Loan Party that is an Irish Subsidiary in form, scope and substance customary for transactions of this type and reasonably satisfactory to the Administrative Agent;
(vii) written opinions of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.LLP, as counsel to the Loan Parties and Parties, (ii) local ▇▇▇▇▇▇▇▇ LLP, Irish counsel in each jurisdiction applicable to the transactions contemplated by this Fifth Amendment and as reasonably requested by the Administrative Agent, and (iii) Walkers (Ireland) LLP, Irish counsel to the Loan Parties, in each case in form and substance acceptable case, addressed to the Administrative Agent Agent, the First Amendment Lenders and its counselthe other Lenders and in form, scope and substance customary for transactions of this type and reasonably satisfactory to the Administrative Agent;
(eviii) all governmental a certificate, dated as of the date hereof, and third party consents to the transactions contemplated hereby, the obtaining of which is a condition to the MLP’s, the Borrower’s or their affiliates’ funding obligations under the Credit Agreement, have been obtained and shall be in full force and effect;
(f) the Administrative Agent has received a certificate signed by a Responsible Officer of the Borrower Borrower, certifying that (iA) no Default or Event of Default has occurred immediately before or will occur immediately after giving effect to the Amendment and the transactions contemplated thereby, (B) each of the representations and warranties contained of the Loan Parties set forth in Article V of the Credit Agreement are and the other Loan Documents is true and correct in all material respects respects, in each case on and as of such date (unless as if made on and as of such date; provided that to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be they were true and correct in all material respects as of such earlier date); provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is true and correct (iiafter giving effect to any qualification therein) no Default or Event of Default has occurred in all respects on such respective dates and is continuing under the Credit Agreement as of such date, (iiiC) since December 31, 20152024, there has been no not occurred a Material Adverse Effect or any event or circumstance that has or could would reasonably be expected to have a Material Adverse Effect, (iv) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of such officer, threatened result in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that could reasonably be expected to have a Material Adverse Effect;
(gix) a Solvency Certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole) on the First Amendment Effective Date immediately before and after giving effect to the transactions contemplated hereby, from the chief financial officer or an authorized person performing similar functions of the Borrower;
(x) an Irish law governed deed of confirmation executed by Synchronoss Technologies Holdings Limited and Synchronoss Software Ireland Limited in form and substance reasonably satisfactory to the Administrative Agent;
(xi) a certificate, dated the First Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that on a Pro Forma Basis, immediately after giving effect to this Amendment and the transactions contemplated hereby occurring on the First Amendment Effective Date the Loan Parties shall have Liquidity in excess of $5,000,000; and
(xii) evidence that the Borrower shall have delivered to the trustee under the Senior Notes Indenture an irrevocable notice of redemption providing for the redemption in full by the Borrower of all outstanding Senior Notes in accordance with the Senior Notes Indenture; provided that, for the avoidance of doubt, such notice of redemption may be conditioned on the funding of the First Amendment Loans.
(c) The Lenders shall have received, no later than three (3) Business Days prior to the First Amendment Effective Date, (i) all documentation and other information requested by them and required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower.
(d) the Borrower has Loan Parties shall have paid (i) fees all reasonable and documented out-of-pocket costs and expenses of the Lenders and the Administrative Agent to the Arrangersextent required to be paid under Section 10.3 of the Credit Agreement and unpaid on the date hereof, (ii) to the Administrative Agent all accrued and unpaid interest on the Initial Loans to, but excluding, the First Amendment Effective Date and (iii) to the Administrative Agent (on behalf for the ratable benefit of itself and the Lenders) and other fees and expenses due and payable pursuant Lenders as of immediately prior to any fee letters applicable to this Fifth the First Amendment between the Borrower and the Arrangers and (iiEffective Date) the Administrative Agent’s and Prepayment Premium (as defined in the Arrangers’ reasonable legal fees and expenses to the extent invoiced prior to closing;
(h) the Borrower has (i) delivered an amendment to each applicable Mortgage to extend the maturity date described therein and (ii) paid funds sufficient to pay any filing or recording tax or fee in connection with the filing of such amendments to the applicable Mortgages, or has made arrangements satisfactory to the Administrative Agent and the Arrangers for payment of such amounts;
(i) the Administrative Agent shall have received (on behalf of the Exiting Lenders) funds necessary to pay all principal, interest, fees and other charges owed to the Exiting Lenders under the Loan Documents; and
(j) the Administrative Agent has received such other documents as may be reasonably required by the Administrative Agent or the Arrangers. Without limiting the generality of the provisions of Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender (other than an Exiting Lender) that has signed this Fifth Amendment shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case, in accordance with the requirements of the Credit Agreement, to be consented to or approved by or be acceptable or satisfactory to a Lender (other than an Exiting Lender). Upon the satisfaction (or waiver in accordance with Section 10.01 of the Existing Credit Agreement) in respect of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower, the Lenders (including the Exiting Lenders) and L/C Issuer of the effectiveness of this Fifth Amendment, and such notice shall be conclusive and bindingInitial Loans.
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