Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”): (a) The Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent. (b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date. (c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent. (d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date. (e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date. (f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; (g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof. (h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans). (i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis. (j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”). (k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement first date (the “Effective Date”) on which all of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):have been satisfied:
(a) The the Administrative Agent Agent, on behalf of the Issuing bank and the Lenders, shall have received a duly executed counterpart signature page the following:
(i) counterparts of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially Borrowers, the form of Annex A hereto, evidencing such Term B-5 Guarantors and the Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an the Lenders who have executed signature page to and delivered this Amendment to the Administrative Agent at on or prior to 12:00 p.m., before 5:00 p.m. (New York City time time) on September 24November 16, 2010 2011 (the each, an “Consent Deadline” and each such Lender, a “Consenting Approving Lender”)., an amendment fee from the Borrowers equal to 0.50% of the Loans and Revolving Loan Commitments of such Approving Lender, which shall be fully earned, non-refundable and due and payable on the Effective Date in immediately available funds; and
(kiii) Each prepayment if any Term Loan Indebtedness (as defined in the Credit Agreement (as amended by this Agreement)) is incurred on the 360 Acquisition Closing Date (as defined in the Credit Agreement (as amended by this Agreement)), counterparts of the Voting Agreement (as defined in the Credit Agreement (as amended by this Agreement)) duly executed by the Borrowers, the Guarantors and the administrative agent for the lenders in respect of the Term B-2 Loans Loan Facility;
(b) all fees and expenses required to be paid hereunder or pursuant to Section VII(h)(bthe Credit Agreement and invoiced at least two (2) Business Days prior to the Effective Date shall have been paid in full in cash or will be paid on the Effective Date; and
(c) the 360 Transactions (as defined in the Credit Agreement (as amended by this Agreement)) shall have been consummated; provided, that, notwithstanding the foregoing, the VOIP Divestiture (as defined in the Credit Agreement (as amended by this Agreement)) may be allocated consummated on or after the Effective Date. It is understood and agreed by each party hereto that the consent of each Approving Lender to this Amendment shall be irrevocable upon the Borrower for purposes of Section 2.05(a)(i) satisfaction of the Amended conditions specified in the foregoing Section 3(a)(i) above and Restated Credit Agreementthat this Amendment shall become effective upon the satisfaction of the conditions specified in Section 3(a)(ii) and (iii), (b) and (c).
Appears in 1 contract
Sources: Credit Agreement (Zayo Group LLC)
Conditions to Effectiveness. This Amendment and Restatement and the obligations of the Lenders to make Loans under the Restated Credit Agreement shall become effective only upon on the satisfaction date (the “Effective Date”) on which each of the following conditions is satisfied (or waiver waived in accordance with Section 10.01 10.02 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”Agreement):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto or to any other Credit Document either (i) a duly executed counterpart of this Amendment and Restatement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment by the Borrower, each and Restatement) that such party has signed a counterpart of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent this Amendment and the Collateral AgentRestatement.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” The Guarantee Requirement shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Datebe satisfied.
(c) The Administrative Agent (or its counsel) shall have received such favorable written opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory (addressed to the Administrative Agent.
, the Swingline Lender and the Lenders and dated the Effective Date) of (di) Each P▇▇▇ ▇▇▇▇▇▇▇, General Counsel of the conditions set forth Company, substantially in Section 4.02 the form of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) Exhibit D-1 and (bii) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP, counsel for the Borrowers, substantially in the form of Exhibit D-2. Each Credit Party hereby requests such counsel to deliver such opinions.
(d) incurred by The Administrative Agent (or its counsel) shall have received such documents and certificates as the Administrative AgentAgent or its counsel may reasonably request relating to the organization, ▇▇▇▇▇ Fargo Securitiesexistence and good standing of each Credit Party that is a US Subsidiary, LLC the authorization of the Transactions and Deutsche Bank Securities Inc. in connection with any other legal matters relating to the preparationCredit Parties, negotiation and execution of this Amendment and Restatement, the Restated Credit Agreement or otherwise required the Transactions, all in form and substance satisfactory to be paid in connection with this Amendmentthe Administrative Agent and its counsel.
(e) The Administrative Agent (or its counsel) shall have received for each Non-US Subsidiary which is a Borrowing Subsidiary under the Existing Credit Agreement either (i) such documents and certificates, including such opinions of counsel, as the Administrative Agent (or its counsel) may reasonably request relating to the organization, existence and good standing (to the extent invoiced at least one Business Day prior such concept is relevant to such Borrowing Subsidiary in its jurisdiction of organization) of such Borrowing Subsidiary, the authorization of the Transactions insofar as they relate to such Borrowing Subsidiary and any other legal matters reasonably relating to such Borrowing Subsidiary or such Transactions, all in form and substance reasonably satisfactory to the date hereofAdministrative Agent and its counsel or (ii) a Borrowing Subsidiary Termination, dated the Effective Date, substantially in the form of Exhibit B-2.
(f) The Administrative Agent (or its counsel) shall have received a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of Holdings, the Company and ASII, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Restated Credit Agreement and paragraphs (b), (i) and (j) of this Section 3.
(g) Any loans outstanding under the Existing Credit Agreement shall have been repaid, together with all interest, fees, including breakage fees, and other amounts accrued thereunder.
(h) The Borrower Administrative Agent shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) received all fees, including participation fees, and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, other amounts due and payable on or prior to repayment the Effective Date, including, to the extent invoiced, reimbursement or payment of Term B-2 Loans all out-of-pocket expenses (including fees, charges and (bdisbursements of counsel) second, after prepayment of Incremental Term B-3 Loans as set forth required to be reimbursed or paid by Holdings or any Borrower or Subsidiary in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans)connection with this Amendment and Restatement or any Loan Document.
(i) After giving effect to The Index Ratings shall be BBB- or higher (i) in the prepayment of Term Loans from the net proceeds case of the New Senior Notes rating by S&P) and Ba1 or higher (ii) in the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount case of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basisrating by M▇▇▇▇’▇), in each case with no negative outlook.
(j) The Administrative Agent and each Lender shall have received from the Borrower any fees required each financial statement or report referred to in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.3.04
Appears in 1 contract
Sources: 364 Day Credit Agreement (American Standard Companies Inc)
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 on and as of the Existing Credit Agreement date when each of the following conditions precedent shall have been satisfied in a manner satisfactory to Administrative Agent (the first date of satisfaction or waiver of upon which all such conditions have been satisfied being referred to herein as called the “Amendment Effective Date”):
2.1 All representations and warranties of the Credit Parties set forth herein shall be true and correct in all material respects as of the Amendment Effective Date as if made on such date (a) it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
2.2 No Default or Event of Default shall exist or would result from the execution and delivery of this Amendment.
2.3 The Administrative Agent shall have received a duly executed counterpart signature page counterparts of this Amendment by from the BorrowerAdministrative Agent, Lenders having Total Revolving Loan Commitments of $315,000,000, U.S. Commitments of $300,000,000 and Canadian Commitments of $15,000,000, and each of the Borrower’s subsidiaries listed on Credit Parties.
2.4 Since the signature pages hereto, date of the Required Lenders, Term B-2 Lenders holding a majority in principal amount most recent audited annual consolidated financial statements of Term B-2 Loans, Holdings delivered to the Administrative Agent and pursuant to Section 9.01(b) of the Collateral AgentCredit Agreement, there has not been any event, development, change or circumstance that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) 2.5 The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date in form and substance reasonably satisfactory to the Administrative AgentAgent and the Lenders, all financial and other reports required to date under the Credit Agreement.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement 2.6 The Administrative Agent shall be satisfied as satisfied, in its reasonable judgment, with the results of its due diligence in connection with this Amendment, including without limitation, the Amendment Effective Datefield exams.
2.7 The Administrative Agent shall have received all necessary consents and/or amendments (eif any) to consummate the transactions contemplated hereby under and pursuant to the Existing Senior Subordinated Notes Documents, any Additional Senior Subordinated Notes Documents, the Senior Secured Notes Documents and any Additional Senior Secured Notes Documents.
2.8 The Administrative Agent shall have received a certificate of a Responsible Officer in form and substance reasonably satisfactory to the Administrative Agent, dated the Amendment Effective Date and signed on behalf of the BorrowerCompany by the chairman of the board, the chief executive officer, the president or any vice president of Company, certifying on behalf of Company and the Credit Parties that the conditions precedent set forth in Sections 4.02(a) 2.1, 2.2 and (b) 2.4 of the Amended and Restated Credit Agreement shall this Amendment have been satisfied on and as of the Amendment Effective Date.
(f) 2.9 The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Credit Parties, an opinion (or, as it relates to the Delaware UCC, advice) incurred by addressed to the Administrative Agent, ▇▇▇▇▇ Fargo Securitiesthe Collateral Agent and each of the Lenders and dated the Amendment Effective Date in form and substance reasonably satisfactory to the Administrative Agent.
2.10 The Administrative Agent shall have received a certificate from each U.S. Credit Party and Canadian Credit Party, LLC dated the Amendment Effective Date, signed by the secretary or assistant secretary of such Credit Party, and Deutsche Bank Securities Inc. attested to by any president, vice president (other than a vice president that signed such certificate), secretary or any assistant secretary of such Credit Party, in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) copies of the certificates or articles of incorporation or certificates or articles of formation of such Credit Party (in the case of each U.S. Credit Party, certified by the secretary of state of the state of such Credit Party’s organization), certified as being true, correct and complete copies thereof as in effect as of the Amendment Effective Date (with no pending action having been taken to amend, rescind or terminate any of the foregoing), (ii) by-laws (or other equivalent organizational documents), as applicable, of such Credit Party, as being true, correct and complete copies thereof as in effect as of the Amendment Effective Date (with no pending action having been taken to amend, rescind or terminate any of the foregoing), (iii) the resolutions of the board of directors, members, managers, partners, or similar party, as applicable, of such Credit Party authorizing its execution, delivery and performance of this Amendment, as being true, correct and complete copies thereof as in effect as of the Amendment Effective Date (with no pending action having been taken to amend, rescind or terminate any of the foregoing), (iv) good standing certificates, or the equivalent, of such Credit Party, certified by the secretary of state of the jurisdiction of organization of such Credit Party, and (v) the names, signatures and incumbency of the Persons authorized to execute and deliver this Amendment and the other instruments, documents and agreements relating thereto.
2.11 The Borrowers shall have paid and the Administrative Agent shall have received all fees due and payable pursuant to that certain fee letter agreement dated as of April 19, 2012 among the Company, Holdings, the Administrative Agent, and the Lead Arranger (including the payment of the up-front fees payable to the Lenders thereunder), together with all accrued and unpaid interest, Letter of Credit Fees and unused line fees pursuant to Section 4.01(a) of the Credit Agreement as of the Amendment Effective Date.
2.12 The Credit Parties shall have paid to the Administrative Agent and each Lender (a) all reasonable and documented out-of-pocket costs and expenses (including reasonable fees and expenses of a single counsel and (if reasonably deemed necessary or appropriate by the Administrative Agent and Lead Arranger) of any special or local counsel for the Administrative Agent or Lead Arranger in connection therewith; provided that, with respect to special and/or local counsel, the Credit Parties shall only be required to reimburse the Administrative Agent and Lead Arranger for the reasonable fees and expenses of a single firm in each relevant jurisdiction), including reasonable costs and expenses (x) of the Administrative Agent’s and Lead Arranger’s due diligence, including field examinations and/or inventory appraisals performed by third parties (including along with such other reasonable costs as the Administrative Agent or Lead Arranger may incur with respect to any due diligence activities) and (y) the Administrative Agent’s and Lead Arranger’s negotiating, preparing and executing all documentation relating to this Amendment and the Credit Agreement, (b) all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and Lead Arranger in connection with the preparation, negotiation and execution syndication of this Amendment or otherwise required to be paid in connection with the Credit Agreement (as amended by this Amendment) and (c) the Administrative Agent’s standard charges for field examinations, including a per diem field examiner charge and reasonable out-of-pocket expenses, in each case subject to Section 13.01(a) of the Credit Agreement, to the extent invoiced then invoiced, with such invoices provided to the Company at least one Business Day prior to the date hereofAmendment Effective Date, in each case, in immediately available funds.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Abl Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Conditions to Effectiveness. This Amendment shall become --------------------------- effective only upon (the satisfaction or waiver in accordance with Section 10.01 actual date of such effectiveness, the "Fourth Amendment ---------------- Effective Date") as of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):first above written when: --------------
(a) The Administrative Agent This Amendment shall have received a been duly executed counterpart signature page of this Amendment and delivered by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages parties hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment The Acknowledgment and Consent dated as a “Term B-5 Lender” of the date hereof by the Company and Pameco Investment Company, Inc. shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender been duly executed and delivered by each of the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Dateparties thereto.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer the Secretary or an Assistant Secretary of each Loan Party, dated as of the BorrowerFourth Amendment Effective Date, and certifying (i) that attached thereto is a true and complete copy of the conditions precedent set forth resolutions (which resolutions are in Sections 4.02(a) form and (bsubstance reasonably satisfactory to each Lender) of the Amended board of directors of such Loan Party authorizing, as applicable, the execution, delivery and Restated Credit Agreement shall have been satisfied on performance of this Amendment, the Acknowledgment and Consent attached hereto, the Fourth Amendment Fee Letter (as defined below) and related matters, certified by the Secretary or an Assistant Secretary of such Loan Party as of the Fourth Amendment Effective DateDate and (ii) as to the incumbency and specimen signature of such Loan Party's officers executing this Amendment and all other documents required or necessary to be delivered hereunder or in connection herewith. Such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate.
(d) The Agent shall have received true and complete copies of the certificate of incorporation and by-laws of each Loan Party, certified as of the Fourth Amendment Effective Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of such Loan Party.
(e) The Agent shall have received fees as required in the Fee Letter dated as of the date hereof from GE Capital to the Company (the "Fourth Amendment Fee Letter"). ----------------------------
(f) Each Lender shall have received a duly executed original Warrant.
(g) Each Lender shall have received a duly executed original Tranche B Term Note.
(h) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable an executed legal fees and expenses of opinion from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC LLP in form and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, substance satisfactory to the extent invoiced at least one Business Day prior to the date hereofAgent.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Pameco Corp)
Conditions to Effectiveness. This First Amendment shall become be effective only upon the satisfaction or waiver in accordance with Section 10.01 completion of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):following:
(a) The the Administrative Agent shall have received a duly executed counterpart signature page counterparts of this First Amendment executed by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, including each Senior Revolving Credit Lender whose Seasonal Revolving Credit Commitment is being increased during the Administrative Agent and the Collateral Agent.Seasonal Revolving Credit Commitment Increase Period;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested counterparts of this First Amendment executed by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, Borrower and acknowledged by each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.Guarantor;
(dc) Each the satisfaction of the conditions set forth in Section 4.02 4.01 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.Agreement;
(ed) The the Administrative Agent shall have received a certificate of a Responsible Officer certified corporate resolution of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) Board of Directors of the Amended Borrower authorizing the execution, delivery and Restated Credit Agreement shall have been satisfied on performance of this First Amendment and as of the Amendment Effective Date.Replacement Notes;
(fe) The the Administrative Agent shall have received a completed “Lifean opinion of in-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination house counsel to the Borrower with respect to the matters set forth in clauses (c), (d) and (e) of Section 2 of this First Amendment and with respect to such other matters as the Administrative Agent and its counsel shall reasonably request;
(f) the Administrative Agent shall have received in immediately available funds (i) for the account of the Administrative Agent an arrangement fee in an amount agreed upon between the Borrower and the Administrative Agent and (ii) for the account of each Mortgaged PropertySeasonal Revolving Credit Lender whose Seasonal Revolving Credit Commitment is being increased during the Seasonal Revolving Commitment Increase Period a fee in an amount equal to the product of (A) 0.10% and (B) the amount of the increase of the Seasonal Revolving Credit Commitment of each such Seasonal Revolving Credit Lender;
(g) The Borrower the Administrative Agent and Travelers shall have paid all reasonable fees executed a Modification and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, Consent to the extent invoiced at least one Business Day prior Intercreditor Agreement which shall provide for an increase in the Total Commitment (as defined in the Intercreditor Agreement) to an amount not to exceed $240,000,000 during the date hereof.Seasonal Revolving Credit Commitment Increase Period; and
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required received, in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment form and substance satisfactory to the Administrative Agent at or prior to 12:00 p.m.and its counsel, New York City time on September 24such other documents, 2010 (certificates and instruments as the “Consent Deadline” and each such Lender, a “Consenting Lender”)Administrative Agent shall require.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only --------------------------- upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement completion of the following conditions (to the date reasonable satisfaction of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):Administrative Agent:
(a) The receipt by the Administrative Agent shall have received a duly of an originally executed counterpart signature page copy of this Amendment executed by the Borrower, Borrower and each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.Lender;
(b) Each Term receipt by the Administrative Agent of an originally executed Revolving Credit Note dated as of the date hereof for each Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to in the order principal amount of such Term B-5 Lender duly Lender's Revolving Credit Commitment;
(c) receipt by the Administrative Agent of an originally executed copy of a pledge agreement executed by the Borrower in favor of the Administrative Agent for the ratable benefit of itself and the Lenders pursuant to which the Borrower pledges the promissory note delivered by Mercom to the Borrower evidencing the refinancing of the Mercom Credit Facility, such pledge agreement to be substantially in the form of Annex A heretoa Borrower Pledge Agreement with such changes thereto deemed necessary by the Administrative Agent to effect the pledge described in this paragraph;
(d) receipt by the Administrative Agent of a certificate of the Secretary of the Borrower certifying that the articles of incorporation and bylaws of the Borrower delivered in connection with the Credit Agreement remain true and correct as of the date hereof (or attaching any changes thereto); that no Default or Event of Default exists or would be created by the execution of the Amendment; that attached thereto is a true and complete copy of the resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, evidencing such Term B-5 Lenders’ Term B-5 Loans, delivery and performance of the Amendment; and as extended; provided that such Term B-5 Lender shall have returned to the incumbency and genuineness of the signature of each officer of the Borrower executing this Amendment;
(e) receipt by the Administrative Agent of an opinion of counsel to the Borrower any Note held by it prior dated the date hereof with respect to the Amendment Effective Date.
(c) The and addressed to the Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and Lenders in form and substance reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.;
(f) The receipt by the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect of any other document or instrument reasonably requested by it relating to each Mortgaged Property;the existence of the Borrower or the corporate authority and the validity of this Amendment; and
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred receipt by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC Agent and Deutsche Bank Securities Inc. the Lenders of the applicable fees due to the Administrative Agent and the Lenders in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this the Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This A. The effectiveness of this Amendment shall become effective only is conditioned upon the satisfaction or waiver Agents’ receipt, in accordance with Section 10.01 of the Existing Credit Agreement form and substance satisfactory to Agents, of the following conditions (the such date of satisfaction or waiver of such conditions being referred to herein as satisfaction, the “Amendment Effective Date”):
(ai) The Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by the BorrowerAmendment, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & B▇▇▇▇ LLP▇▇▇▇, New York counsel Parent and the Guarantors;
(ii) the payment by Borrower of a nonrefundable amendment fee in the amount of $1,250,000 payable to Agents for the ratable benefit of the Lenders and Incremental Lenders;
(iii) the payment by Borrower of (i) the Agent Fee attributable to the Loan PartiesIncremental Increase in the amount of $[***] and (ii) the Original Issue Discount attributable to the Incremental Increase in the amount of $2,000,000, each dated payable as follows: (1) $1,500,000 upon disbursement by Administrative Agent to Borrower of the Amendment Effective Date Second Term Loan; and reasonably satisfactory (2) $500,000 upon disbursement of the Third Term Loans by Administrative Agent to Borrower during the Administrative Agent.Draw Period;
(div) Each any customary resolutions duly adopted by the board of directors (or equivalent governing body) of Borrower authorizing the conditions Incremental Increase reasonably requested by Agents in connection with the Incremental Increase;
(v) evidence that all taxes shown on such tax returns to be due and payable and all assessments, fees and other similar governmental charges imposed by a tax authority upon a Loan Party set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.on Schedule 4.17 have been paid;
(evi) The Administrative Agent shall have received a certificate satisfaction of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(aSection 3.2 of the Amended Credit Agreement;
(vii) payment of (a) all reasonable fees, costs and expenses incurred in connection with the negotiation, preparation, execution and delivery of this Amendment and any related documents, and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal documented fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. Agents’ outside legal counsel in connection with the preparationforegoing;
(viii) No Default or Event of Default shall have occurred and be continuing; and
(ix) such other documents, negotiation and execution completion of this Amendment such other matters, as Agent may reasonably deem necessary or otherwise required to be paid appropriate in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofforegoing.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 10.5 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(ai) The the Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by the Company, each other Borrower, each of the BorrowerCompany’s subsidiaries listed on the signature pages hereto, the Required Requisite Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.,
(bii) Each Term Lender Company shall have become a Grantor under the Collateral Agreement by duly executing and delivering to the Collateral Agent a joinder agreement thereto, substantially in the form attached as Exhibit 1 to this Amendment as a (the “Term B-5 Lender” shall have receivedJoinder Agreement”), if requested by it, one or more replacement Notes payable to and the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Collateral Agent shall have received such opinions as may reasonably be requested a duly executed counterpart signature page of the Joinder Agreement by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel each Grantor (other than the Company) party to the Loan PartiesJoinder Agreement, the Parent Collateral Agent and the Subsidiary Collateral Agent (each as defined in the Joinder Agreement).
(iii) the Administrative Agent, the Collateral Agent and each Lender shall have received an executed copy of the favorable written legal opinion, dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each Date, of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the BorrowerSkadden, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of Arps, Slate, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by , as counsel to the Administrative AgentCredit Parties, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with regarding the preparation, negotiation and execution enforceability of this Amendment or otherwise required and the Joinder Agreement and the creation and perfection of the security interest purported to be paid created by the Joinder Agreement, and otherwise in connection with this Amendment, form and substance reasonably satisfactory to the extent invoiced at least one Business Day prior Administrative Agent and the Collateral Agent (and each Credit Party hereby instructs such counsel to deliver such opinion to the date hereof.Administrative Agent and the Collateral Agent),
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (iiv) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Collateral Agent shall have received from (x) copies of UCC financing statements in form and substance acceptable to the Borrower any Collateral Agent naming Company as debtor and each of the Collateral Agent and each collateral agent for Permitted Exchange Indebtedness as the respective secured parties, in each case to be filed by the Company promptly following the Amendment Effective Date; (y) all of the Pledged Certificated Stock and Pledged Intercompany Debt Instruments (each such term as defined in the Collateral Agreement) of Company (as specified on Schedules 5A and 5B to the Joinder Agreement), duly indorsed by Company to the Collateral Agent together with undated stock or other transfer powers duly executed in blank; and (z) executed short-form intellectual property security agreement(s) substantially in the form attached as Annex 3 to the Collateral Agreement in respect of all Registered Intellectual Property (as defined in the Collateral Agreement) of Company;
(v) the Company shall have paid to Bank of America, N.A., in its capacity as Administrative Agent and Collateral Agent, and each Steering Lender all of the outstanding costs and expenses (including the fees, expenses and disbursements of counsel and other advisors) referred to in Section 10.2 of the Credit Agreement for which it has been invoiced at least two (2) Business Days prior to the Amendment Effective Date (which may include amounts constituting reasonable estimates of fees required in connection with and expenses of counsel and other advisors, provided that no such estimate shall thereafter preclude a final settling of account as to such fees and expenses);
(vi) the Bankruptcy Court shall have issued an order approving this Amendment in Dollars for and the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to Joinder Agreement and the Company’s entry into this Amendment to and the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).Joinder Agreement; and
(kvii) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) Plan shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreementhave become, or shall substantially concurrently become, effective.
Appears in 1 contract
Conditions to Effectiveness. This First Amendment shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement date when each of the following conditions specified below shall have been satisfied (the date of satisfaction or waiver of such conditions being referred to herein as the “First Amendment Effective Date”):
(ai) The the Administrative Agent and the Borrower shall have received a signed signature page to this First Amendment from the Borrower, the Guarantors, the Fronting Lender, and the Administrative Agent and a signed consent from each Consenting Lender, and in the case of each such Consenting Lender such Consenting Lender shall have elected on its signature page either “Option A” or “Option B” as described in Exhibit A hereto;
(ii) the Borrower shall have caused to be delivered to the Administrative Agent shall have received a duly executed counterpart signature page written opinion of this Amendment by ▇▇▇▇▇▇ Price P.C., special counsel for the Borrower, each of Borrower and the Borrower’s subsidiaries listed on Guarantors in form and substance reasonably satisfactory to the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, Administrative Agent and addressed to the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A Lenders party hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to and dated the Borrower any Note held by it prior to the First Amendment Effective Date.;
(ciii) The the Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel with respect to the Loan PartiesBorrower a certificate of the Secretary of State of the state of Nevada, each dated as of the Amendment Effective Date and reasonably satisfactory a recent date, as to the Administrative Agent.its good standing;
(div) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer the Secretary or an Assistant Secretary (or similar officer), of the Borrower, Borrower dated the date hereof and certifying as to the conditions precedent set forth in Sections 4.02(a) incumbency and (b) specimen signature of each officer of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Borrower executing this First Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Propertyor any other document delivered by it in connection herewith;
(gv) The the Borrower shall have paid to the Administrative Agent for the benefit of itself and the Consenting Lenders the then-unpaid balance of all reasonable accrued and unpaid fees due, owing and out-of-pocket expenses (including payable by the Borrower to them in connection with this First Amendment, as agreed to by the Borrower in writing, and the reasonable legal attorneys’ fees of Milbank LLP as counsel to the Administrative Agent and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPto the Fronting Lender (subject to any limitations that have been separately agreed) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation execution and execution delivery of this First Amendment as to which the Borrower shall have received an invoice prior to the First Amendment Effective Date;
(vi) the Administrative Agent shall have received an Officer’s Certificate from the Borrower certifying as to the truth in all material respects of the representations and warranties set forth in Section 3 of this First Amendment as though made by it on the date hereof, except to the extent that any such representation or otherwise required warranty relates to a specified date, in which case as of such date (provided, that any representation or warranty that is qualified by materiality, “Material Adverse Change” or “Material Adverse Effect” shall be true and correct in all respects as of the applicable date, before and after giving effect to the First Amendment);
(vii) all interest accrued on the Term Loans that has not yet been paid by the Borrower to the Administrative Agent as of the First Amendment Effective Date shall have been paid in full;
(viii) all amounts owing to the Non-Consenting Lenders pursuant to Section 2.15 (Break Funding Payments) of the Loan Agreement in connection with the repayment of their Refinanced Term Loans pursuant to this Amendment, First Amendment shall have been paid by the Borrower to the extent invoiced Administrative Agent for the account of each such Non-Consenting Lender, subject in the case of each Non-Consenting Lender to its giving the Borrower a written certificate setting forth any such amount due to it at least one Business Day prior to the date hereof.First Amendment Effective Date; and
(hix) The Borrower the transactions contemplated by Section 7 below shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) been duly effected. The Administrative Agent shall have received from promptly notify the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment parties hereto of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) occurrence of the Amended and Restated Credit AgreementFirst Amendment Effective Date.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Allegiant Travel CO)
Conditions to Effectiveness. __This Amendment shall become be deemed to be, --------------------------- and shall become, effective only upon as of the Effective Date referred to above, in the manner, and to the extent, provided below, subject to the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following applicable conditions (the date of satisfaction precedent on or waiver of prior to such conditions being referred to herein as the “Amendment Effective Date”):date:
(a) The effectiveness of all provisions of this Amendment except for ---------- Section 2 hereof (all such provisions, excluding Section 2 hereof, being referred to as the "Majority Lender Approval Provisions") shall be subject to the receipt, on or prior to the Effective Date, by the Administrative Agent of (i) one or more counterparts of this Amendment duly executed and delivered by the Company, Samsonite Europe, and the Majority Lenders, and (ii) the applicable amendment fees provided for in paragraph (c) below, for the respective accounts of the applicable Lenders signatory hereto entitled thereto, in immediately available funds;
(b) The effectiveness of Section 2 hereof (the "Special Approval Provisions") shall be subject to the receipt, on or prior to the Effective Date, by the Administrative Agent of (i) one or more counterparts of this Amendment duly executed by the Company, Samsonite Europe, the Majority Lenders, the Majority Domestic Term Loan Lenders, the Majority Foreign Term Loan Lenders, and the Majority Revolving Lenders, and (ii) the applicable amendment fees provided for in paragraph (c) below, for the respective accounts of the applicable Lenders signatory hereto entitled thereto, in immediately available funds;
(c) The Company shall have paid (and the Company hereby covenants and agrees to pay, subject to and simultaneously with the effectiveness of the applicable provisions of this Amendment) to the Administrative Agent on the Effective Date, for the respective accounts of those Lenders that, as of the Effective Date, have duly executed and delivered counterparts of this Amendment to the Administrative Agent, an amendment fee (the "Amendment Fee") in immediately available funds, which shall be equal to the Applicable Fee Percentage (as defined below) of the sum of (i) such Lender's Domestic Term Loan Commitment Percentage of the then outstanding principal amount of the Domestic Term Loan and such Lender's Foreign Term Loan Commitment Percentage of the then outstanding principal amount (expressed as a Dollar Equivalent amount) of the Foreign Term Loan, in each case if applicable, and (ii) the aggregate amount of such Lender's Commitments, if applicable. For purposes of determining the Amendment Fee, the Applicable Fee Percentage shall be (x) 25 basis points (0.25%) in the event that, as of the Effective Date, the Administrative Agent shall have received a duly executed counterpart signature page counterparts of this Amendment duly executed and delivered by the Borrower, each of Borrowers and the Borrower’s subsidiaries listed on the signature pages hereto, the Required Majority Lenders, Term B-2 as contemplated by clause (i) of paragraph (a) of this Section 3 (but not by all those additional Lenders holding a majority in principal amount required by clause (i) of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
paragraph (b) Each Term Lender executing of this Amendment as a “Term B-5 Lender” shall have receivedSection 3), if requested by itor, one or more replacement Notes payable to alternatively, (y) 35 basis points (0.35%) in the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loansevent that, as extended; provided that such Term B-5 Lender shall have returned to of the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The , the Administrative Agent shall have received such opinions as may reasonably be requested counterparts of this Amendment duly executed and delivered by it, including an opinion the Borrowers and all those Lenders required by clause (i) of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and paragraph (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Datethis Section 3.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Multicurrency Revolving Credit and Term Loan Agreement (Samsonite Corp/Fl)
Conditions to Effectiveness. This Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of Lender hereunder, it is understood and agreed that this Amendment shall not become effective only upon effective, including, without limitation, the amendments contained in Section B and the consent contained in Section C, and no Company shall have any rights hereunder until satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction precedent on or waiver of such conditions being referred prior to herein as the “Amendment Effective Date”):December 5, 2014:
(a) The Administrative Agent 1. Lender shall have received a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Partiesfollowing documents, each dated as of the date hereof and in form and substance satisfactory to Lender:
a. executed counterparts to this Amendment from Borrowers, each of the Guarantors and the Lender and to the Fee Letter executed by Borrowers and Lender in connection with this Amendment;
b. a fully executed amendment to the GS Term Loan Agreement which consents to the Heartland Acquisition;
c. a fully executed copy of the Vertex OH Shared Services Agreement;
d. fully executed copies of the Heartland Purchase Agreement (including all schedules and exhibits thereto), all amendments to the Heartland Purchase Agreement, and each other material document entered into in connection with the Heartland Acquisition, including, without limitation, the Escrow Agreement (as defined in the Heartland Purchase Agreement) and all leases with the Seller (as defined in the Heartland Purchase Agreement), each certified as being true, correct and complete by an Authorized Officer of Company;
(i) the results of a recent search, by a Person satisfactory to Lender, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property acquired in the Heartland Acquisition, together with copies of all such filings disclosed by such search, and (ii) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);
f. a title report issued by a title company reasonably satisfactory to Lender with respect to each Real Estate Asset to be purchased by Vertex Refining OH in the Heartland Acquisition, dated not more than thirty days prior to the First Amendment Effective Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein;
g. reports and other information, in form, scope and substance satisfactory to Lender, regarding environmental matters relating to the Real Estate Assets to be acquired or leased in the Heartland Acquisition, which reports shall include a Phase I Report for each of the Real Estate Assets specified by Lender; and
h. payoff or release letters from the lenders holding Liens on the assets to be acquired in the Heartland Acquisition together with all documents or instruments necessary to release all Liens securing Indebtedness owed to such lenders.
2. Lender shall have received evidence in form and substance reasonably satisfactory to Lender demonstrating that on the Administrative Agentdate hereof, immediately after giving effect to this Amendment, the Heartland Acquisition and all other transactions contemplated to occur on the date hereof, Vertex Refining OH shall have unrestricted Cash and Cash Equivalents held in a separate account in the name of Vertex Refining OH in an amount at least equal to $1,500,000.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent 3. Lender shall have received a certificate copies of a Responsible Officer all required consents, releases and terminations of liens and claims under the BorrowerHeartland Purchase Agreement, certifying the conditions precedent including, without limitation, those set forth on Schedules 6.02(d) and 7.03(b) to the Heartland Purchase Agreement and the Heartland Acquisition shall have been consummated in Sections 4.02(acompliance with (a) all applicable laws and (b) the terms and provisions of the Amended Heartland Purchase Agreement; the Heartland Acquisition Documents shall not have been amended, restated, supplemented or otherwise modified and Restated Credit Agreement no term thereof shall have been satisfied on and as waived without the prior written consent of the Amendment Effective DateLender.
(f) The Administrative Agent 4. Lender shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination reimbursement or payment of its costs and expenses incurred in connection with respect this Amendment or the Credit Agreement (including reasonable fees, charges and disbursements of counsel to each Mortgaged Property;Lender).
(g) The Borrower 5. Lender shall have paid all reasonable fees received correspondence in form and out-of-pocket expenses (including the reasonable legal fees and expenses of substance reasonably satisfactory to Lender from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Van Deuren s.c. (“▇▇▇▇▇▇▇▇”) to the effect that ▇▇▇▇▇▇▇▇ LLP) incurred has received not less than $1,500,000 in its client trust account from the issuance of Capital Stock by Holdings to the Administrative Agent, ▇▇▇▇▇▇ Fargo SecuritiesGRATs, LLC and Deutsche Bank Securities Inc. in connection with that upon the preparation, negotiation closing of the Heartland Acquisition and the execution and delivery of this Amendment or otherwise required to be paid in connection with this Amendment, by all parties hereto and the execution and delivery of the amendment to the extent invoiced at least one Business Day prior GS Term Loan Agreement referred to the date hereofin Section E.1.b. hereof by all parties thereto, that ▇▇▇▇▇▇▇▇ will transfer all such amounts to Vertex Refining OH.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent 6. Lender shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment payment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to amendment fee which is due and payable under the Borrower for purposes terms of Section 2.05(a)(i) that certain Fee Letter dated of the Amended even date herewith among Borrowers and Restated Credit AgreementLender.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon the The effectiveness of this Agreement is subject to satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions precedent (except as expressly set forth in the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”Post-Closing Letter):
(a) The Administrative Agent (or its counsel) shall have received from each Loan Party and the Lenders a duly executed counterpart signature page of this Amendment by the Borrower, Agreement and all other applicable Loan Documents signed on behalf of each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agentsuch party.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” The Administrative Agent shall have received, if requested by it, one or more replacement Notes payable received a written opinion (addressed to the order Administrative Agent, the Collateral Agent and the Lenders and dated the Third Restatement Date) of each of (i) Ropes & ▇▇▇▇ LLP, counsel for the Loan Parties, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, Ohio counsel for the Loan Parties and (iii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Virginia counsel for the Loan Parties, in each case covering such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned matters relating to the Borrower any Note held by it prior Loan Parties, the Loan Documents or the transactions contemplated thereby as the Administrative Agent shall reasonably request. The Loan Parties hereby request such counsel to the Amendment Effective Datedeliver such opinions.
(c) The Administrative Agent shall have received Organization Documents and such opinions other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization and existence of each Loan Party, the authorization of the transactions contemplated by the Loan Documents, incumbency certificates evidencing the identity, authority and capacity of each of certain Responsible Officers 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 requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel a party on the Third Restatement Date and any other legal matters relating to the Loan Parties, each the Loan Documents or the transactions contemplated thereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a Borrowing Base Certificate dated as of the Amendment Effective Third Restatement Date, relating to the month ended April 30, 2016, and executed by a Financial Officer of the Lead Borrower.
(e) All representations and warranties contained in this Agreement and the other Loan Documents or otherwise made in writing in connection herewith or therewith shall be true and correct in all material respects on and as of the Third Restatement Date, other than representations and warranties that relate solely to an earlier date, which shall be true and correct in all material respects as of such earlier date, provided that any representations and warranties which are qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such respective dates.
(f) No Material Adverse Effect shall have occurred since January 30, 2016, and the Administrative Agent shall have received a certificate from a Responsible Officer of the Lead Borrower to that effect.
(g) The Collateral Agent shall have received results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases or subordination agreements are being tendered on the Third Restatement Date.
(h) The Administrative Agent shall be reasonably satisfied with the amount, types and terms and conditions of all insurance maintained by the Loan Parties; and the Administrative Agent shall have received insurance certificates naming the Collateral Agent, on behalf of the Lenders, as an additional insured or lender’s loss payee, as the case may be, under each insurance policy to be maintained with respect to the Collateral and as to which the Administrative Agent shall have reasonably requested to be so named.
(i) The Administrative Agent shall be reasonably satisfied that all fees due on the Third Restatement Date and, to the extent invoiced at least two Business Days prior to the Third Restatement Date, all Credit Party Expenses incurred in connection with the establishment of the credit facility contemplated hereby (including the reasonable fees and expenses of counsel to the Administrative Agent and the Collateral Agent), shall be paid in full.
(j) After giving effect to this Agreement and the transactions contemplated hereby, no Default or Event of Default shall be continuing.
(k) The Collateral Agent shall have received (i) all documents and instruments, including Uniform Commercial Code financing statements, required by Applicable Law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect in the United States the first priority Liens intended to be created under the Loan Documents and (ii) the Credit Card Notifications and Blocked Account Agreements to the extent required pursuant to SECTION 2.18 hereof.
(l) The Administrative Agent shall have received, at least three Business Days prior to the Third Restatement Date, all documentation and other information that is required by regulatory authorities and/or the Administrative Agent’s due diligence investigation under applicable “know your customer” and anti-money laundering rules and regulations, including the KYC Provisions (as defined in SECTION 9.19 below), to the extent such documentation and other information has been requested in writing by the Administrative Agent at least 10 Business Days prior to the Third Restatement Date, and the results of such investigation shall be reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(em) The Administrative Agent shall have received and be satisfied with detailed financial projections, including, in each case, a certificate Consolidated income statement, balance sheet, statement of cash flow and Availability analysis and business assumptions for the Borrowers on (x) a Responsible Officer of quarterly basis for the BorrowerFiscal Year ending January 28, certifying the conditions precedent set forth in Sections 4.02(a) 2017, and (by) of on an annual basis, for the Amended Fiscal Years ending February 3, 2018 and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative AgentFebruary 3, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes 2019 (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting LenderSpecified Projections”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of date (the Existing Credit Agreement of “Effective Date”) on which the following conditions (the date of satisfaction shall have been satisfied or waiver of such conditions being referred to herein as the “Amendment Effective Date”):waived:
(a) The the Administrative Agent shall have received a this Amendment, duly executed counterpart signature page of this Amendment and delivered by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent Borrower and the Collateral Agent.Lenders;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” CityForest and its Subsidiaries shall have receivedcomplied with Section 5.13 of the Credit Agreement, if requested by it, one or more replacement Notes payable including the delivery of a Joinder Agreement to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.Administrative Agent;
(c) The the Administrative Agent shall have received copies of the CityForest Acquisition Agreement, the CityForest Indenture, the CityForest Bond Loan Agreement, the Note Purchase Agreement and the Associated Bank Agreement, certified by an officer of the Borrower to be true and correct and in force and effect as of the Effective Date, and no provision thereof shall have been amended, waived or otherwise modified without the consent of the Administrative Agent;
(d) the Associated Bank Intercreditor Agreement shall have been duly executed and delivered by all parties thereto;
(e) each document (including any Uniform Commercial Code financing statement) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral acquired pursuant to the CityForest Acquisition to the extent required by Section 5.13 of the Credit Agreement;
(f) the CityForest Acquisition shall have been consummated in accordance with the CityForest Acquisition Agreement, and no provision thereof shall have been amended, waived or otherwise modified without the consent of the Administrative Agent;
(g) the Administrative Agent shall have received evidence reasonably satisfactory to it that the Borrower shall have received $20,265,000 in gross cash proceeds from the issuance of the Additional Senior Secured Notes pursuant to the Note Purchase Agreement;
(h) the Administrative Agent shall have received legal opinions from counsel to the Borrower and its Subsidiaries in form and substance reasonably satisfactory to the Administrative Agent; and
(i) the Administrative Agent shall have received such opinions certificates as may be reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This The effectiveness of this Amendment shall become effective only upon is subject to the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):precedent:
(a) The Administrative Agent Lenders shall have received a (i) this Amendment, duly executed counterpart signature page by the Borrower and all Lenders, (ii) new Advance Term Notes, dated as of the Effective Date but otherwise substantially in the form of Exhibit A to the Credit Agreement, executed by the Borrower in favor of each Lender reflecting the Advance Term Loan Commitments as amended herein (the "New Advance Term Notes"), (iii) new Revolving Credit Notes, dated as of the Effective Date but otherwise substantially in the form of Exhibit B to the Credit Agreement, executed by the Borrower in favor of each Lender reflecting the Revolving Credit Commitments as amended herein (the "New Revolving Credit Notes"), (iv) a certificate of the Secretary of the Borrower acknowledging (A) that the Borrower's Board of Directors has adopted, approved, consented to and ratified resolutions which authorize the execution, delivery and performance by such Borrower of this Amendment, the New Advance Term Notes, the New Revolving Credit Notes and all other Credit Documents to which the Borrower is or is to be a party as a result of this Amendment, and (B) the names of the officers of the Borrower authorized to sign this Amendment, the New Advance Term Notes, the New Revolving Credit Notes, and each of the other Credit Documents to which the Borrower is or is to be a party as a result of this Amendment by (including the Borrowercertificates contemplated herein) together with specimen signatures of such officers, each of and (v) such additional documents, instruments and information as the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.may reasonably request;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” of the Lenders listed below shall have received, if requested by itin consideration of this Amendment, one or more replacement Notes payable an amendment fee (the "Amendment Fee") equal to the order amount corresponding to such Lender's name below: Lender Amendment Fee ------ ------------- Well▇ ▇▇▇go Bank (Texas), National Association $24,000.00 Chase Bank of such Term B-5 Lender duly executed by the Borrower in substantially the form Texas, National Association $17,318.18 Paribas $11,193.18 First Union National Bank $29,193.18 Bank of Annex A heretoAmerica, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.N.A. $29,193.18 National City Bank $12,500.00
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as Confirmations of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.existing Guaranty Agreements from each Guarantor;
(d) Each of A legal opinion from counsel to the conditions set forth in Section 4.02 of Borrower covering such matters as the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.Agent may reasonably request;
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of representations and warranties contained herein and in the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement and the Credit Documents, as each is amended hereby, shall have been satisfied on be true and correct in all material respects as of the Amendment Effective Date.date hereof, as if made on the date hereof (except insofar as such representations and warranties relate expressly to an earlier date or a date modified hereby);
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment this Amendment, no Default or Event of Term Loans from the net proceeds of the New Senior Notes Default shall have occurred and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.continuing; and
(jg) The Administrative Agent shall have received from the Borrower any fees required All corporate proceedings taken in connection with the transactions contemplated by this Amendment in Dollars for the account of each Lender (and all documents, instruments and other than a Defaulting Lender) that has returned an executed signature page to this Amendment legal matters incident thereto shall be satisfactory to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” Lenders and each such Lender, a “Consenting Lender”)their legal counsel.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment Agreement shall become be effective only upon as of the date hereof, subject to the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):precedent:
(a) The Administrative Agent This Amendment Agreement shall have received a been duly executed counterpart signature page of this Amendment and delivered by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent Borrowers and the Collateral Agent.Lender;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 The Lender shall have returned received an amended and restated Revolving Credit Note, duly and properly authorized, executed and delivered by the Borrowers in favor of the Lender, in form and substance satisfactory to the Borrower any Note held by it prior to the Amendment Effective Date.Lender;
(c) The Administrative Agent Lender shall have received such opinions as may reasonably be requested a perfection certificate, duly and properly authorized, executed and delivered by itthe New Borrower, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date in form and reasonably substance satisfactory to the Administrative Agent.Lender;
(d) Each of The Lender shall have received UCC-1 financing statements, to be filed in appropriate jurisdictions, duly and properly authorized, executed and delivered by the conditions set forth New Borrower, in Section 4.02 of form and substance satisfactory to the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective DateLender.
(e) The Administrative Agent Security Documents and this Amendment Agreement shall be effective to create in favor of the Lender a legal, valid and enforceable first security interest in and lien upon the Collateral of the New Borrower, subject only to Permitted Liens. All filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Lender to protect and preserve such security interests shall have been duly effected. The Lender shall have received a certificate of a Responsible Officer of evidence thereof in form and substance satisfactory to the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective DateLender.
(f) The Administrative Agent Lender shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination stock certificates, with respect stock powers endorsed in blank thereto, representing all of the shares of capital stock of the New Borrower, in form and substance satisfactory to each Mortgaged Propertythe Lender;
(g) The Borrower Lender shall have paid all reasonable fees and out-of-pocket expenses (including received the reasonable legal fees and expenses Articles of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred Incorporation of the New Borrower, certified of recent date by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with Secretary of State of the preparation, negotiation and execution State of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.Delaware;
(h) The Borrower Lender shall have issued at least $500.0 million aggregate principal amount received the Certificate of senior unsecured notes (the “New Senior Notes”) and used Borrower's Foreign Qualification of recent date for the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment State of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).New York;
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds The Lender shall have received a copy, certified by a duly authorized officer of the New Senior Notes Borrower to be true and (ii) the conversion complete, of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans its by-laws as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million in effect on a pro forma basis.such date;
(j) The Administrative Agent Lender shall have received authorizing resolutions and incumbency certificates from each of the Borrower any fees required in connection with Borrowers, authorizing such company's execution and delivery of, and the performance of its obligations under this Amendment in Dollars for Agreement, certified by the account Secretary of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).company; and
(k) Each prepayment The Lender shall have received a favorable legal opinion, dated as of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated date hereof, addressed to the Borrower for purposes of Section 2.05(a)(i) of Lender from counsel to the Amended Borrowers, in form and Restated Credit Agreementsubstance satisfactory to the Lender.
Appears in 1 contract
Sources: Amendment Agreement (Geowaste Inc)
Conditions to Effectiveness. This The effectiveness of this Waiver and Amendment shall become effective only upon is subject to the satisfaction or waiver in accordance with Section 10.01 full of each of the Existing Credit Agreement of the following conditions precedent set forth in this Section 4 (the date of satisfaction or waiver upon which each of such conditions being referred to herein as precedent has been satisfied, the “Amendment Effective Date”):) as follows:
(a) The for the effectiveness of Sections 3(a), 3(b), and 3(d) – (f) hereof, the Administrative Agent shall have received counterparts of this Waiver and Amendment that, when taken together, bear the signatures of the Borrower, the Guarantors and the Supermajority Lenders;
(b) for the effectiveness of Sections 3(c), and 3(g) – (k) hereof, the Administrative Agent shall have received counterparts of this Waiver and Amendment that, when taken together, bear the signatures of the Borrower, the Guarantors and the Required Lenders;
(c) the representations and warranties contained in Section 5 hereof are true and correct;
(d) all costs and expenses due and owing pursuant to Section 11 hereof to the Administrative Agent by the Borrower shall have been paid in full;
(e) all legal matters incident to this Waiver and Amendment shall be satisfactory to ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Administrative Agent;
(f) the Administrative Agent shall have received a duly modified Compliance Certificate for the fiscal year ending September 30, 2017 executed counterpart signature page by an Authorized Officer of this Amendment by the Borrower, each certifying that the Overhead expenditures of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority Credit Parties for such fiscal year were not in principal amount excess of Term B-2 Loans, the Administrative Agent and the Collateral Agent.$58,462,542;
(bg) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Seer P&A Agent shall have received such opinions as may reasonably be requested by it, including executed an opinion of Ropes & ▇▇▇▇ LLP, New York counsel amendment to the Seer P&A Facility Credit Agreement granting substantively identical amendments to those set forth in this Waiver and Amendment to the extent applicable to the Seer P&A Facility Credit Agreement (i.e., excluding the amendments set forth herein relating to modifications to the Borrowing Base or Borrowing Base reporting), in form and substance satisfactory to the Administrative Agent; and
(h) the Subordinated Agent shall have executed an amendment to the Subordinated Loan PartiesAgreement granting substantively identical amendments to those set forth in this Waiver and Amendment to the extent applicable to the Subordinated Loan Agreement (i.e., each dated as of excluding the Amendment Effective Date amendments set forth herein relating to modifications to the Borrowing Base or Borrowing Base reporting), in form and reasonably substance satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon the Upon satisfaction (or waiver in accordance with Section 10.01 9.08 of the Existing Credit Agreement Agreement) of the following conditions conditions, this Amendment shall be deemed to be effective as of September 30, 2003 (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Effectiveness Date”):
(a) The Administrative Agent (or its counsel) shall have received from Lenders constituting the Requisite Lenders, the Lenders holding over 50% of the Term B Loans, the Lenders holding over 50% of the outstanding Revolving Credit Commitments and Revolving Credit Exposure and each of the other parties hereto either (i) a duly executed counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment by the Borrower, each Amendment) that such party has signed a counterpart of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.this Amendment;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion reimbursement or payment of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees fees, charges and expenses disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPcounsel) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be reimbursed or paid by the Borrower in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.Amendment or any Loan Document;
(hc) The Borrower shall have issued at least $500.0 million aggregate principal paid to the Administrative Agent on behalf of each Lender executing this Amendment an amendment fee in an amount equal to 0.25% of senior unsecured notes such Lender’s total Term B Loans and Revolving Credit Commitments (whether drawn or undrawn) outstanding on the “New Senior Notes”) Effectiveness Date and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions any application of Term B-2 Loans to Term B-5 Loans).proceeds of Second Lien Indebtedness;
(id) After giving effect All corporate and other proceedings taken or to be taken in connection with this Amendment and all documents incidental thereto, whether or not referred to herein, shall be satisfactory in form and substance to the Administrative Agent and its counsel;
(ie) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit AgreementThe Borrower shall have provided, or caused to be provided, to each Lender, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.Amendment Information;
(jf) The Borrower shall have provided a supplement to the Perfection Certificate dated as of a recent date;
(g) The Administrative Agent shall have received from received, on behalf of itself and the Borrower any fees required Lenders, a favorable written opinion of counsel to the Company in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment form and substance reasonably satisfactory to the Administrative Agent at with respect to the matters set forth in Section 3(b) and (c);
(h) On or prior before the date hereof (or as such period may be extended by the Administrative Agent) the Administrative Agent shall have received (to 12:00 p.m.the extent it so requires, New York City time on September 24and in form and substance reasonably satisfactory to it) amendments to each of the Separation Agreements whereby Crown Holdings, 2010 (the “Consent Deadline” Inc. and each such Lenderof its subsidiaries, to the extent parties thereto (each, a “Consenting LenderCrown Entity”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated agree, (i) to eliminate any right to terminate, such Separation Agreement solely as a result of a Bankruptcy Event (as defined therein) (but to the Borrower for purposes of Section 2.05(a)(iextent such right is eliminated to permit such Crown Entity unilaterally to make reasonable modifications to the payment terms (but not pricing)) of and (ii) to eliminate any right to terminate the Amended and Restated Transition Services Agreement (as referenced on Schedule 3.22 to the Existing Credit Agreement) upon a Change of Control except that the applicable Crown Entity shall have the right to renegotiate pricing terms upon a Change of Control and to terminate such Separation Agreement if pricing terms are not agreed to after good faith negotiations.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon of this Agreement, Initial Loans and Letters of Credit. The effectiveness of this Agreement, the obligation of each Restructuring Lender to make or restructure its Loans on the Closing Date and to participate in the Letters of Credit outstanding on the Closing Date and of the Letter of Credit Bank to issue any Letter of Credit on the Closing Date are subject to the satisfaction or waiver in accordance with Section 10.01 by the Lenders of each of the Existing Credit Agreement conditions contained in Sections 6.1(b), (c) and (d) and each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):precedent:
(a) The receipt by the Administrative Agent for the account of each Lender of duly executed Notes, each dated the Closing Date, complying with the provisions of Section 2.4;
(b) receipt by the Administrative Agent of fully executed copies of each of the Security Documents (other than any Mortgages not required to be delivered pursuant to Section 6.2(q));
(c) receipt by the Administrative Agent of (i) UCC-1 Financing Statements executed on behalf of the Borrower for filing in all jurisdictions in which it would be necessary or desirable to make a filing in order to provide the Collateral Agent (for its benefit and the benefit of the Secured Parties) with a perfected security interest in the Collateral and evidence of the filing of such UCC-1 Financing Statements in all jurisdictions in which it would be necessary to provide the Collateral Agent (for its benefit and the benefit of the Secured Parties) with a perfected security interest in substantially all the Inventory; and (ii) UCC-11 searches reflecting that no filings relating to Liens on the Collateral are of record in such jurisdictions except those permitted under the Credit Documents;
(d) the New Cash Management Bank and the Borrower shall have received entered into arrangements providing for the New Cash Management Bank to assume responsibility for the Borrower's primary cash management operations;
(e) receipt by the Administrative Agent of (i) a duly executed counterpart signature page favorable signed opinion, dated the Closing Date, of this Amendment by Bl▇▇▇▇▇▇▇, Sanders, Matheny, Weary & Lo▇▇▇▇▇▇, ▇.▇., counsel for the Borrower, each substantially in the form of Exhibit J-1, and covering such additional matters relating to the transactions contemplated hereby as the Lenders may reasonably request, (ii) a favorable signed opinion, dated the Closing Date, of Wachtell, Lipton, Ro▇▇▇ & Ka▇▇, special New York counsel for the Borrower, substantially in the form of Exhibit J-2, and covering such additional matters relating to the transactions contemplated hereby as the Lenders may reasonably request and (iii) such other favorable signed opinions of counsel as the Administrative Agent or its counsel may request;
(f) receipt by the Administrative Agent of a Closing Certificate signed by an executive officer of the Borrower’s subsidiaries listed on , substantially in the signature pages heretoform of Exhibit K, with appropriate insertions and attachments satisfactory in form and substance to the Administrative Agent;
(g) receipt by the Administrative Agent of all documents it may reasonably request relating to the existence of the Borrower and its Subsidiaries, the Required corporate authority for and the validity of this Agreement, the Notes and the other Credit Documents, and any other matters relevant hereto (including, without limitation, certified resolutions and incumbency certificates), all in form and substance satisfactory to the Administrative Agent;
(h) there shall not have occurred since May 25, 1996, a material adverse change, or development or event involving a prospective change, which, in the reasonable judgment of the Lenders, Term B-2 could have a material adverse effect on (i) the assets, liabilities, properties, business, operations or condition, financial or otherwise, or prospects of the Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the Borrower and its Subsidiaries to perform their obligations under the Credit Documents, or (iii) the rights and remedies of the Collateral Agent, the Administrative Agent, the Letter of Credit Bank or the Lenders holding under the Credit Documents, and none of the Administrative Agent, the Collateral Agent, the Letter of Credit Bank or any Lender shall have become aware of any theretofore previously undisclosed materially adverse information with respect to the matters described in subclause (i), (ii) or (iii) of this clause (h);
(i) all transactions contemplated hereby shall be in compliance with and permitted by all applicable laws and regulations of the United States and all laws and regulations of each state (including, without limitation, environmental laws) except where such noncompliance or prohibition could not reasonably be expected to have a majority Materially Adverse Effect;
(j) there shall be no actions, suits or proceedings by any Governmental Authority or other Person or investigation by any Governmental Authority or other Person pending or known by the Borrower to be threatened with respect to the Borrower or any of its Subsidiaries or (relating to the transactions contemplated hereunder) the Administrative Agent, the Collateral Agent, the Co-Agents, the Letter of Credit Bank or any Lender, which could reasonably be expected to have a Materially Adverse Effect; there shall be no judgment, order, injunction or other restraint prohibiting any of the transactions contemplated by any of the Credit Documents;
(k) receipt by the Administrative Agent of evidence satisfactory to the Administrative Agent that all fees payable to the Administrative Agent, the Collateral Agent, the Letter of Credit Bank and the Lenders shall have been paid in principal amount full on or prior to the Closing Date, including without limitation the Amendment Fee, the Swingline Facility Fee, the fees required to be paid pursuant to Section 3.1(d) and the Fee Letter and the accrued and unpaid reasonable fees and expenses of Term B-2 Loansthe Administrative Agent and the Lenders (including, without limitation, the fees and disbursements of Za▇▇▇▇, Rodin & Go▇▇▇▇▇ ▇LP ("ZR&G"), special counsel to the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by itand Ernst & Young LLP, one or more replacement Notes payable financial advisors to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A heretoZR&G, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & Em▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇Ma▇▇▇▇ LLP, special real estate counsel to the Administrative Agent and the Collateral Agent and any special local real estate or patent and trademark counsel to the Administrative Agent and the Collateral Agent);
(l) incurred receipt by the Administrative Agent and the Collateral Agent of this Agreement duly executed and delivered by the Co-Agents, the Letter of Credit Bank, all of the Lenders and the Borrower;
(m) receipt by the Administrative Agent of all necessary consents and waivers of third parties, if any, each in form and substance satisfactory to the Administrative Agent;
(n) to the extent available, receipt by the Administrative Agent and the Collateral Agent of original certificates of insurance and loss payee and additional insured insurance endorsements, in form and substance satisfactory to the Administrative Agent and the Collateral Agent, with respect to the insurance coverage required pursuant to Section 8.3 and described on Schedule IV (it being understood that any documentation remaining to be delivered hereunder shall be delivered in accordance with Section 8.32);
(o) to the extent available and not previously provided, receipt by the Administrative Agent of the original certificates of title for vehicles pledged to the Collateral Agent (it being understood that any documentation remaining to be delivered hereunder shall be delivered in accordance with Section 8.32);
(p) receipt by the Administrative Agent of such other documents and agreements as may be reasonably requested by the Administrative Agent, ▇▇▇▇▇ Fargo Securitiesthe Collateral Agent, LLC and Deutsche Bank Securities Inc. the Lenders or ZR&G in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, financing contemplated hereunder; and
(q) to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) firstavailable, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated receipt by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior of executed Mortgages with respect to 12:00 p.m.each Available Property listed on Schedule III, New York City time on September 24, 2010 (together with the “Consent Deadline” Title Policies and Surveys for each such Lender, a “Consenting Lender”).
(k) Each prepayment Mortgage and the payment of all fees relating thereto and evidence of the Term B-2 Loans pursuant filing of Mortgages with respect to Section VII(h)(b) shall be allocated to each Available Property listed on Schedule III in the Borrower for purposes appropriate filing or recording offices and the payment of Section 2.05(a)(i) of the Amended all taxes and Restated Credit Agreementrecording fees relating thereto.
Appears in 1 contract
Conditions to Effectiveness. This Amendment and Restatement and the obligations of any Lender to make Loans under Section 2.01 of the Restated Credit Agreement shall become effective only upon on the satisfaction date (the ”Restatement Date”) on which each of the following conditions is satisfied (or waiver waived in accordance with Section 10.01 8.02 of the Existing Restated Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”Agreement):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a duly executed counterpart of this Amendment and Restatement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment by the Borrower, each and Restatement) that such party has signed a counterpart of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding this Amendment and Restatement.
(b) The Administrative Agent shall have received a majority in principal amount of Term B-2 Loans, written opinion (addressed to the Administrative Agent and the Collateral AgentLenders and dated the Restatement Date) of each of (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
, General Counsel of the Borrower, and (bii) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, if requested by itcounsel for the Borrower, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower substantially in substantially the form of Annex A heretoExhibits ▇-▇ and B-2, evidencing respectively, and covering such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned other matters relating to the Borrower, this Amendment and Restatement, the Restated Credit Agreement or the Transactions as the Required Lenders shall reasonably request. The Borrower any Note held by it prior hereby requests such counsel to the Amendment Effective Datedeliver such opinions.
(c) The Administrative Agent shall have received such opinions documents and certificates as the Administrative Agent or its counsel may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel request relating to the Loan Partiesorganization, each dated as existence and good standing of the Borrower, the authorization of this Amendment Effective Date and reasonably Restatement and any other legal matters relating to the Borrower, this Amendment and Restatement or the Restated Credit Agreement, all in form and substance satisfactory to the Administrative AgentAgent and its counsel.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of certificate, dated the Restatement Date and signed by the President, a Responsible Vice President or a Financial Officer of the Borrower, certifying confirming the conditions precedent representations and warranties set forth in Sections 4.02(aparagraphs (a) and (b) of Section 2 of this Amendment and Restatement.
(e) If any “Lender” under (and as defined in) the Amended Existing Credit Agreement is not a party to this Amendment and Restatement (any such “Lender”, a “Non-Continuing Lender”), then (i) this Amendment and Restatement shall have been signed by Lenders constituting the “Required Lenders” under (and as defined in) the Existing Credit Agreement, (ii) on the Restatement Date, the Borrower shall pay all fees and interest accrued for the account of all the “Lenders” under (and as defined in) the Existing Credit Agreement, and (iii) on the Restatement Date, the Borrower shall prepay, in accordance with the Existing Credit Agreement but subject to Section 4 below, any and all “Loans” outstanding under (and as defined in) the Existing Credit Agreement that are held by Non-Continuing Lenders, and shall finance the principal amount of such prepayments by borrowing Loans on the Restatement Date pursuant to Section 2.01 of the Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date(subject to Section 4 below).
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative AgentAgent shall be satisfied that the Amendment and Restatement Agreement dated as of the date hereof, ▇▇▇▇▇ Fargo Securitieswith respect to the Amended and Restated Five-Year Revolving Credit Agreement dated as of November 5, LLC 2004, among the Borrower, the Lenders party there and Deutsche Bank Securities Inc. JPMorgan Chase Bank, N.A., as administrative agent, shall become effective in connection accordance with its terms concurrently with the preparation, negotiation and execution effectiveness of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofand Restatement.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from all documentation and other information reasonably requested by it to satisfy the requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. The Administrative Agent shall notify the Borrower any fees required and the Lenders in connection with writing of the Restatement Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Amendment in Dollars for and Restatement shall not become effective unless each of the account foregoing conditions is satisfied (or waived pursuant to Section 8.02 of each Lender (other than a Defaulting Lenderthe Restated Credit Agreement) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 3:00 p.m., New York City time time, on September 24March 31, 2010 2006 (and, in the “Consent Deadline” event such conditions are not so satisfied or waived, this Amendment and each Restatement shall terminate at such Lender, a “Consenting Lender”time).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment letter amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 Documentation Agent's receipt of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(a) The Administrative Agent shall have received a duly executed counterpart signature page copies of this Amendment by letter amendment bearing the Borrower, signatures of each of the Co-Agents and Borrower’s subsidiaries listed on , and bearing the signature pages heretoof Good Guys, Inc. under the Required Lendersacknowledgment set forth below. Please indicate your acceptance of and agreement to the foregoing by executing a copy of this letter where indicated below, Term B-2 Lenders holding arranging for Good Guys, Inc. to execute a majority in principal amount copy of Term B-2 Loansthis letter where indicated below, and returning the executed copies to the undersigned. Very truly yours, BANK OF AMERICA, N.A., as Administrative Agent By: /s/ KEVIN KELLY ---------------------------------------- Kevin Kelly Senior Vice President GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent By: /s/ IAIN G. DOUGLAS ---------------------------------------- Iain G. Douglas Duly Authorized Signatory ACCEPTED AND AGREED this 15th day of May 2002. GOOD GUYS CALIFORNIA, INC. By: /s/ PETER G. HANELT --------------------------- Name: Peter G. Hanelt --------------------------- Title: COO --------------------------- ACKNOWLEDGMENT OF GOOD GUYS, INC. The undersigned hereby acknowledges and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable consents to the order execution and delivery by Co-Agents and Borrower of such Term B-5 Lender duly executed by the Borrower in substantially the form letter amendment set forth above, and reaffirms each and every one of Annex A heretoits obligations to Co-Agents and Lenders under that certain Continuing Guaranty, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each Pledge and Security Agreement dated as of the September 30, 1999, as amended by that certain First Amendment Effective Date to Continuing Guaranty, Pledge and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Security Agreement shall be satisfied dated as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the BorrowerAugust 16, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent2001. GOOD GUYS, ▇▇▇▇▇ Fargo SecuritiesINC. By: /s/ PETER G. HANELT -------------------------------- Name: Peter G. Hanelt ------------------------------ Title: COO ----------------------------- Dated: May 15, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.2002
Appears in 1 contract
Conditions to Effectiveness. This Amendment Agreement shall become be effective only upon the satisfaction or waiver in accordance with Section 10.01 completion of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):following:
(a) The the Administrative Agent shall have received a duly executed counterpart signature page counterparts of this Amendment Agreement executed by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested counterparts of this Agreement executed by itBorrower, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, HOT-TX and Limited and acknowledged by each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.Guarantor;
(dc) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer executed Replacement Revolving Loan Notes for each Lender;
(d) the Administrative Agent shall have received an executed amended and restated Guaranty (the “Amended and Restated Guaranty”), executed by each Guarantor;
(e) each of the Borrower, certifying the conditions precedent set forth in Sections Section 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and (as if HOT-TX were Borrowing as of the Amendment Effective Date.date of this Agreement);
(f) The the Administrative Agent shall have received a completed “Life(i) Secretary’s Certificate of HOT-ofTX, containing Exhibit A, Articles of Incorporation of HOT-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to TX, certified by the Texas Secretary of State, Exhibit B, Bylaws of HOT-TX, Exhibit C, Unanimous Written Consent of the Board of Directors of HOT-TX approving the execution, delivery and performance of this Agreement and the Replacement Revolving Loan Notes, and Exhibit D, Incumbency; (ii) Secretary’s Certificate of Borrower, containing Exhibit A, Certificate of Limited Partnership of Borrower, Exhibit B, Agreement of Limited Partnership of Borrower, Exhibit C, Unanimous Written Consent of General Partner of Borrower approving the execution, delivery and performance of this Agreement and the Amended and Restated Guaranty, and Exhibit D, Incumbency; (iii) Certificates of Fact, certified by the Texas Secretary of State for HOT-TX and the Borrower; (iv) a print out of the franchise tax details page from the Texas comptroller for HOT-TX and Borrower and (v) certified resolutions of Limited and each Mortgaged Propertyother Guarantor approving the execution, delivery and performance of this Agreement and the Amended and Restated Guaranty;
(g) The Borrower the Administrative Agent shall have paid all reasonable fees received an opinion of legal counsel to the Borrower and outHOT-of-pocket expenses TX covering the matters set forth in Sections 6(a), (including b)(i), (ii) and (iii), (c) and (d) of this Agreement;
(h) the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by PC, counsel for the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be shall have been paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).immediately available funds; and
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required received, in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment form and substance satisfactory to the Administrative Agent at or prior to 12:00 p.m.and its counsel, New York City time on September 24such other documents, 2010 (certificates and instruments as the “Consent Deadline” and each such Lender, a “Consenting Lender”)Administrative Agent shall reasonably require.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Second Amendment, Assumption, Consent and Ratification Agreement (Helen of Troy LTD)
Conditions to Effectiveness. This Amendment shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of date (such date being referred to as the Existing Credit Agreement “Amendment No. 3 Effective Date”), when each of the following conditions shall have been satisfied:
(i) each Credit Party shall have executed and delivered counterparts of this Amendment to the date Term Loan Administrative Agent, (ii) each Consenting Lender and the New Lender shall have executed and delivered counterparts of satisfaction or waiver this Amendment to the Term Loan Administrative Agent and (iii) each Administrative Agent shall have executed a counterpart of such conditions being referred to herein this Amendment;
(b) each of the representations and warranties of each Credit Party contained in Section 4 hereof shall be true and correct on and as of the “Amendment No. 3 Effective Date”):;
(ac) The no Default or Event of Default shall have occurred and be continuing on the Amendment No. 3 Effective Date or after giving effect to the New Term Loans made on the Amendment No. 3 Effective Date;
(d) the Term Loan Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an customary written opinion of Ropes & ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, New York as counsel to the Loan PartiesBorrower (and, each with respect to the continuing perfection of security interests, the Guarantors), dated as of the Amendment No. 3 Effective Date and reasonably satisfactory addressed to the Administrative Agent.Agents, the New Lender, the Consenting Lenders and the Revolving Lenders;
(di) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent No. 3 Lead Arranger shall have received a certificate the fees in the amounts previously agreed to in writing with the Borrower to be received on the Amendment No. 3 Effective Date pursuant to that certain Fee Letter, dated as of a Responsible Officer of the BorrowerFebruary 6, certifying the conditions precedent set forth in Sections 4.02(a) 2020 and (bii) of the Amended Term Loan Administrative Agent and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent No. 3 Lead Arranger shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and documented out-of-pocket fees and expenses required to be paid or reimbursed on the Amendment No. 3 Effective Date, including pursuant to that certain Engagement Letter, dated as of February 6, 2020 and under Section 11.01 of the Existing Credit Agreement (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agents and the Amendment No. 3 Lead Arranger);
(f) incurred the Term Loan Administrative Agent (or its counsel) shall have received (i) a certificate of the Borrower, dated as of the Amendment No. 3 Effective Date and executed by a Responsible Officer thereof, which shall (A) certify that (x) either (1) attached thereto is a true and complete copy of the Organizational Documents of the Borrower certified, where applicable, by the relevant authority of its jurisdiction of organization or (2) the Organizational Documents of the Borrower, delivered on the Closing Date to the Term Loan Administrative Agent, ▇▇▇▇▇ Fargo Securitieshave not been amended, LLC repealed, modified or restated and Deutsche Bank Securities Inc. are in connection with full force and effect, and (y) attached thereto is a true and complete copy of the preparationresolutions or written consent, negotiation as applicable, of its board of directors authorizing the execution and execution delivery of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
which resolutions or written consent have not been modified, rescinded or amended (h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”other than as attached thereto) and used are in full force and effect as of the net proceeds thereof to prepay (a) firstAmendment No. 3 Effective Date, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (bB) second, after prepayment of Incremental Term B-3 Loans as set forth in identify by name and title and bear the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds signatures of the New Senior Notes Responsible Officers of the Borrower authorized to sign this Amendment on the Amendment No. 3 Effective Date and (ii) a good standing certificate for the conversion Borrower from the relevant authority of $500.0 million principal amount its jurisdiction of Term B-2 Loans into Term B-5 Loans organization or incorporation, dated as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of a recent date;
(g) the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Loan Administrative Agent shall have received from a certificate of the Borrower signed by a Responsible Officer thereof certifying that the conditions set forth in Sections 3(b) and (c) hereof have been satisfied;
(h) the Borrower shall, substantially concurrently with the Amendment No. 3 Effective Date and after the making of the New Term Loans (i) repay all Original Term Loans outstanding immediately prior to the Amendment No. 3 Effective Date (other than Converted Term Loans) and (ii) pay to the Term Loan Administrative Agent, for the ratable benefit of the existing Lenders of Original Term Loans, all accrued and unpaid interest to, but not including, the Amendment No. 3 Effective Date with respect to the Original Term Loans outstanding under the Existing Credit Agreement immediately before giving effect to this Amendment;
(i) the Term Loan Administrative Agent shall have received a Borrowing Notice in accordance with the requirements of the Existing Credit Agreement; and
(1) Upon the reasonable request of any fees required Lender made at least ten (10) Business Days prior to the Amendment No. 3 Effective Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with this Amendment applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment case at least three Business Days prior to the Administrative Agent at or Amendment No. 3 Effective Date and (2) At least ten (10) Business Days prior to 12:00 p.m.the Amendment No. 3 Effective Date, New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, any Borrower that qualifies as a “Consenting Lender”).legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower; and
(k) Each The Term Loan Administrative Agent shall have received a prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated notice with respect to the Borrower for purposes of Section 2.05(a)(i) of Initial Term Loans (as defined in the Amended and Restated Existing Credit Agreement).
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall will become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement of the following conditions date hereof (the date of satisfaction or waiver of such conditions being referred to herein as the “"Amendment Effective Date”):") upon receipt by the Administrative Agent of the following:
(a) The Administrative Agent shall have received a duly the fully executed counterpart signature page counterparts of this Amendment (including the Ratification of Guaranty hereto by the Borrower, each of Guarantors) executed by the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 LoansLoan Parties, the Administrative Agent and the Collateral Agent.requisite Lenders; and
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable certificate from each Loan Party in form and substance satisfactory to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each and dated as of the Amendment Effective Date as to the incumbency of, and reasonably satisfactory bearing manual specimen signatures of, the officers or other authorized signatories of such Loan Party who are authorized to execute and take actions under this Amendment on behalf of such Loan Party (or a certification that no changes have been made to the list provided to the Administrative Agent.
(dAgent on March 30, 2022 in the certificate delivered pursuant to Section 6(c) Each of the conditions set forth in Section 4.02 of the Seventh Amendment to Third Amended and Restated Credit Agreement shall be satisfied dated as of March 30, 2022 (the Amendment Effective Date.
(e"Seventh Amendment") The among the Loan Parties, the Lenders and the Administrative Agent shall (the "Seventh Amendment Certificate"), and certifying and attaching copies of (i) each Loan Party's Organizational Documents (or a certification that no changes have received a been made to such Loan Party's Organizational Documents from those delivered to the Administrative Agent with the Seventh Amendment Certificate or on May 5, 2021 in the certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (bdelivered pursuant to Section 4(e) of the Fifth Amendment to Third Amended and Restated Credit Agreement shall have been satisfied on and dated as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative AgentMay 5, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes 2021; and (ii) the conversion resolutions of $500.0 million principal amount each Loan Party's board of Term B-2 Loans into Term B-5 Loans directors, members or managers, as the case may be, authorizing the transactions contemplated by this Amendment. In addition, to the extent any reallocation as contemplated by Section 2.05(b) of the Amended and Restated Credit AgreementAgreement is expected to be effective as of the Eighth Amendment Effective Date, then as a condition to the effectiveness of such reallocation, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent Borrowers shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment also deliver to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(kEighth Amendment Effective Date the certificate required by Section 2.05(b)(v) Each prepayment of the Term B-2 Loans Credit Agreement and take the other actions required pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement2.05(b)(v).
Appears in 1 contract
Conditions to Effectiveness. This Amendment and Restatement and the obligations of the Lenders to make Loans under the Credit Agreement as amended and restated hereby shall become effective only upon on the satisfaction date (the "Effective Date") on which each of the following conditions is satisfied (or waiver waived in accordance with Section 10.01 9.02 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”Agreement):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a duly executed counterpart of this Amendment and Restatement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment by the Borrower, each and Restatement) that such party has signed a counterpart of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, this Amendment and Restatement.
(b) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Collateral Agent.
Lenders and dated the Effective Date) of (bi) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have receivedSidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, if requested by itspecial counsel for the Company, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower substantially in substantially the form of Annex A heretoExhibit D-1, evidencing and (ii) the General Counsel of the Company, substantially in the form of Exhibit D-2. Each Loan Party hereby requests such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that counsel to deliver such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Dateopinions.
(c) The Administrative Agent shall have received such opinions documents and certificates as the Administrative Agent or its counsel may reasonably be requested by itrequest relating to the organization, including an opinion existence and good standing of Ropes & ▇▇▇▇ LLPthe Loan Parties, New York counsel the authorization of the Transactions and any other legal matters relating to the Loan Parties, each dated as of this Amendment and Restatement, the Amendment Effective Date Credit Agreement or the Transactions, all in form and reasonably substance satisfactory to the Administrative AgentAgent and its counsel.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of certificate, dated the Effective Date and signed by the President, a Responsible Vice President or a Financial Officer of the BorrowerCompany, certifying confirming compliance with the conditions precedent set forth in Sections 4.02(aparagraphs (a) and (b) of Section 4.02 of the Amended and Restated Credit Agreement.
(e) Any loans outstanding under the Existing Credit Agreement shall have been satisfied on repaid, together with all interest, fees and as of the Amendment Effective Dateother amounts accrued thereunder.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the reasonable legal agreed upon fees and expenses charges, plus disbursements, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPcounsel) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be reimbursed or paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower Company or any fees required Subsidiary in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the and Restatement or any Loan Document. The Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (shall notify the “Consent Deadline” Company and each such Lender, a “Consenting Lender”).
(k) Each prepayment the Lenders of the Term B-2 Loans pursuant to Section VII(h)(b) Effective Date, and such notice shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended conclusive and Restated Credit Agreementbinding.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Edwards Lifesciences Corp)
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):upon:
(a) The Administrative delivery to the Collateral Agent shall have received a duly of ten (10) originally executed counterpart signature page copies of this Amendment, dated the Amendment Date, as executed by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent Borrowers and the Collateral Agent.Guarantors;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order Collateral Agent having received executed forms of such Term B-5 Lender duly executed by the Borrower in substantially attached Instructing Group Consents from each of the form of Annex A hereto, evidencing such Term B-5 Lenders constituting Majority Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.;
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel delivery to the Loan Parties, each dated as Collateral Agent of ten originally executed copies of the Amendment Effective Date Intercreditor Agreement (as defined below) in form and reasonably in substance satisfactory to the Administrative Agent.
Lenders and Lenders' counsel (d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇);
(d) delivery to the Collateral Agent of two certified copies of the 2003 Note Purchase Agreement;
(e) delivery to the Collateral Agent of all security and documents required to be delivered under the Agreement to the Collateral Agent and Lenders in respect of the reorganizations of the [PROPERTY MANAGEMENT COMPANIES (i.e. CAMCO] and the [▇▇▇▇▇ & GROUP OF COMPANIES];
(f) delivery to the Collateral Agent of certificates executed by an officer of each of the Borrowers and Guarantors certifying that their respective Boards of Directors have each adopted resolutions that are in full force and effect, without modification or amendment, authorizing the execution, delivery and performance by such Borrower or Guarantor of this Amendment, the Intercreditor Agreement (as defined below), the 2003 Note Purchase Agreement and the Omnibus Amendment Agreement dated as of September 29, 2003, between, amongst others, the Guarantors, Borrowers and the 2003 Noteholders;
(g) the Collateral Agent being satisfied with and having completed all due diligence which it considers necessary or appropriate in its discretion in regard to the 2003 Note Purchase Agreement and the financing thereunder;
(h) the Collateral Agent being satisfied with all proceedings to be taken in connection with the transactions contemplated by this Amendment, the 2003 Note Purchase Agreement and the Amended and Restated Intercreditor Agreement dated as of September 29, 2003, between, amongst others, the Lenders and the 2003 Noteholders (the "Intercreditor Agreement") and other documents or instruments incident hereto or thereto which are contemplated in connection herewith or therewith;
(i) payment to the Collateral Agent on behalf of the Lenders of sufficient funds received by the Canadian Borrower and FSLP, pursuant to the 2003 Note Purchase Agreement, to reduce the outstanding Total Commitments to U.S.$90,000,000 and to reduce the Total U.S. Commitments, as a subset of the Total Commitments, to U.S.$50,000,000; and
(j) delivery of any other documents, opinions of legal counsel, financial statements, and such other writings as may be required by the Collateral Agent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.;
Appears in 1 contract
Sources: Credit Agreement (Firstservice Corp)
Conditions to Effectiveness. This Amendment shall become effective only The effectiveness of this Agreement is conditioned upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (precedent:
a. the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(a) The Administrative Agent shall have received a duly executed counterpart signature page signed written authorization from the Required Lenders and Required Tranche C Term Lenders to execute this Agreement, and shall have received counterparts of this Amendment Agreement signed by the Borrower, Borrower and the other Credit Parties;
b. each of the Borrower’s subsidiaries listed representations and warranties in Section 5 below shall be true and correct in all material respects;
c. after giving effect to the consent set forth in Section 2 hereof and the amendments set forth in Section 3 hereof, no Default or Event of Default shall have occurred and be continuing under the Credit Agreement or any other Credit Document;
d. in consideration of the consent and amendments contained in this Agreement, the Borrower shall have paid to the Administrative Agent on the signature pages heretoAmendment Effective Date, for the pro rata account of the Lenders, a fee equal to 0.03% of the sum of the Revolving Committed Amount, the Required Lendersoutstanding Term Loans and the outstanding Tranche C Term Loans;
e. the Administrative Agent shall have received payment in immediately available funds of all expenses incurred by the Administrative Agent (including, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loanswithout limitation, legal fees) for which invoices have been presented, on or before the Amendment Effective Date;
f. the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent Lenders shall have received such legal opinions as may from (i) the Borrower's New York counsel reasonably be requested by itsatisfactory to the Administrative Agent, including an opinion of Ropes (ii) Miles & Stockbridge, (iii) Stokes, Bartholomew, Evan▇ & ▇etr▇▇ ▇▇▇ LLP(iv) other counsel requested by the Administrative Agent, New York counsel each in form and substance reasonably satisfactory to the Loan PartiesAdministrative Agent, each dated as of the Amendment Effective Date and reasonably satisfactory addressed to each of the Administrative Agent., the Documentation Agent, the Syndication Agent, the Co-Agent, the Lead Arranger and the Lenders;
(d) Each of g. the conditions set forth in Section 4.02 of Required Lenders and the Amended and Restated Credit Agreement Required Tranche C Term Lenders shall be satisfied as with the continued perfection and priority of the Amendment Effective Date.Liens of the Administrative Agent on the Collateral and will have received such title insurance endorsements and other documents and agreements as they may reasonably require;
(e) The h. the Administrative Agent shall have received a certificate satisfactory evidence that the execution, delivery and performance of a Responsible Officer of this Agreement (including, without limitation, the Borrower, certifying amendments to the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall contained herein) have been satisfied on and as duly approved by all necessary corporate action of each Credit Party; and
i. the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees such other documents, instruments, certificates, opinions and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofapprovals as it may reasonably request.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This (a) The Initial Amendment shall become effective only upon on the satisfaction date on which the Consenting Lenders shall have received executed original, facsimile or waiver in accordance with other electronic copies of counterparts to (i) this Amendment No. 1 from the Borrower, the Required Lenders and, for purposes of Section 10.01 of the Existing Credit Agreement Agreement, the Administrative Agent and (ii) a consent and reaffirmation (the “Consent and Reaffirmation”) from Holdings and each Subsidiary Guarantor in the form attached hereto as Annex B (the time at which the conditions set forth in this Section 3(a) are satisfied, the “Initial Amendment Effective Time”);
(b) The Additional Amendments shall become effective on the date on which:
(i) the Consenting Lenders shall have received such certificates of good standing from the applicable secretary of state of the following conditions (state of organization of each Loan Party, customary certificates of resolutions or other action, incumbency certificates and/or other customary certificates of Responsible Officers of each Loan Party evidencing the date identity, authority and capacity of satisfaction each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment No. 1 or waiver of such conditions being referred to herein the Consent and Reaffirmation, as the “Amendment Effective Date”):applicable;
(aii) The the Consenting Lenders shall have received a customary opinion from Weil, Gotshal & ▇▇▇▇▇▇ LLP8, dated the Amendment No. 1 Effective Date in form an substance reasonably satisfactory to the Consenting Lenders; 8 No conflicts opinion to be limited to no conflict of ABL Credit Agreement and Term Loan/ABL Intercreditor Agreement with amended Term Loan Agreement.
(iii) all expenses due to the Consenting Lenders, the New Lenders and the Administrative Agent pursuant to Section 10.04(a) of the Credit Agreement in connection with this Amendment No. 1 have been paid;
(iv) each New Lender shall have received at least two (2) Business Days prior to the Closing Date all documentation and other information reasonably requested in writing by such New Lender with respect to any Loan Party at least eight (8) Business Days prior to the Closing Date in order to allow such New Lender to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(v) the Administrative Agent shall have received a duly executed counterpart signature page Committed Loan Notice reflecting the Borrowing of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 New Loans, the Administrative Agent and the Collateral Agent.;
(bvi) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received an officer’s certificate satisfying the requirements of (A) the last sentence of Section 7.05 of the Credit Agreement and (B) Section 7.12(d) of the Security Agreement with respect to the release of its Lien on the Additional Contributed IP;
(vii) contemporaneously with the transactions contemplated hereby, J. Crew International Cayman Limited, an exempted company incorporated and existing in the Cayman Islands, shall have merged with and into J. Crew International, Inc., a Delaware corporation (“J. Crew International”), with J. Crew International as the survivor of such opinions merger, such that J.Crew International shall be the direct owner of all Equity Interests in J.Crew Brand Holdings and the Loan Parties shall have taken any actions required under the Security Agreement with respect to the pledge of Equity Interests of J.Crew Brand Holdings by J. Crew International;
(viii) (A) the Borrower shall have purchased, at par, $150,000,000 (the “Amended Loan Purchase Amount”) of the aggregate principal amount of Initial Loans held on the Amendment No. 1 Effective Date (immediately prior to giving effect to the Additional Amendments) by Consenting Lenders that have executed this Amendment No. 1 and delivered their respective signature pages to this Amendment No. 1 and the Agent Direction Letter (as may reasonably be requested defined below) to LendAmend® or another platform or address designated by it, including an opinion of Ropes & ▇▇▇▇ LLP, the Borrower prior to 5:00 p.m. New York counsel time on June 16, 2017 (the Initial Loans of such Consenting Lenders, the “Purchased Amended Loans”), such that each such Consenting Lender shall have received an amount equal to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 its ratable share of the Amended and Restated Credit Agreement shall be satisfied as of Loan Purchase Amount, (B) contemporaneously with such purchase, the Amendment Effective Date.
(e) The Administrative Agent Borrower shall have received a certificate of a Responsible Officer of immediately cancelled the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) Purchased Amended Loans and (bC) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) firsteach such Consenting Lender, all Incremental Term B-3 Loans, prior to repayment unpaid interest on the Purchased Amended Loans of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.such
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions date (the date of satisfaction or waiver of such conditions being referred to herein as the “"Second Amendment Effective Date”):") on which the Administrative Agent shall have received:
(a) The Administrative Agent shall have received this Amendment, executed and delivered by a duly executed counterpart signature page authorized officer of the Borrower;
(b) written consents to the execution of this Amendment ("Lender Consent Letters"), or facsimile transmissions thereof, from Lenders constituting the Supermajority Lenders and the Required Prepayment Lenders;
(c) a Lender Addendum executed and delivered by each Term Loan Lender and by each Revolving Credit Lender providing the additional $15,000,000 of Revolving Credit Commitments and accepted by the Borrower;
(d) an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, or a facsimile transmission thereof, from each Loan Party other than the Borrower (such Acknowledgment and Consent, together with this Amendment, the "Amendment Documents");
(e) evidence that all necessary or, in the reasonable discretion of the Borrower’s subsidiaries listed Administrative Agent, advisable additional or amended collateral filings have been duly made or taken and all necessary or, in the reasonable discretion of the Administrative Agent, reasonably advisable duly executed and delivered amendments to the existing Security Documents shall have became effective;
(f) evidence satisfactory to it that (i) all of the Senior Notes tendered in connection with a tender offer for all such notes shall have been paid, redeemed or repurchased in full with Subordinated Debt issued on terms and conditions satisfactory to the signature pages heretoAdministrative Agent, and (ii) a supplemental indenture to the Required LendersSenior Note Indenture, Term B-2 Lenders holding pursuant to which the restrictive covenants under the Senior Note Indenture have been deleted, shall have been executed and delivered, and shall have become operative in accordance with its terms;
(g) a majority in principal amount of Term B-2 Loans, favorable written opinion (addressed to the Administrative Agent and the Collateral Agent.
Lenders and dated the Second Amendment Effective Date) of each of (bi) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have receivedWeil, if requested by itGotshal & Manges LLP, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned counsel to the Borrower any Note held by it prior to the Amendment Effective Date.
and its Subsidiaries, and (cii) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & Jo▇▇ ▇▇▇▇ LLPna, New York counsel Esq., General Counsel - Corporate of the Borrower and its ▇▇▇▇▇▇▇▇▇ies, in each case in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Parties, each dated the Loan Documents and this Amendment as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Propertyreasonably request;
(gh) The Borrower shall have paid for the account of each Lender that executes and delivers a Lender Consent Letter on or prior to 5:00 p.m., New York City time, on June 17, 2004, an amendment fee in an amount equal to 0.05% of the Aggregate Exposure of such Lender before giving effect to this Amendment;
(i) all fees required to be paid, and all reasonable fees and out-of-pocket expenses for which invoices have been presented (including reasonable fees, disbursements and other charges of counsel to the reasonable legal fees Agents), on or before the Second Amendment Effective Date;
(j) satisfactory evidence that the outstanding principal amount of the Existing Term Loans (as defined in this Amendment) shall have been paid in full with the proceeds of the Term Loans (as defined in this Amendment) or converted into Term Loans, and expenses that all accrued and unpaid interest and other amounts due and payable on the Existing Term Loans not converted to Term Loans shall have been paid in full;
(k) satisfactory evidence that the Borrower shall have made such borrowings and prepayments of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPRevolving Credit Loans such that, after giving effect thereto, the respective principal amounts of Revolving Credit Loans held by the Revolving Credit Lenders shall be pro rata according to their respective Revolving Credit Percentages, as amended hereby (the Borrower being obligated to pay the amounts, if any, due pursuant to Section 2.19 of the Credit Agreement in connection with such prepayments);
(l) incurred by a copy of the resolutions of the Board of Directors of the Borrower, in form and substance satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securitiesauthorizing the execution, LLC delivery and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution performance of this Amendment and the other Loan Documents, as so amended, certified by the secretary of the Board of Directors of the Borrower as of the Second Amendment Effective Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or otherwise required to be paid rescinded and are in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.full force and effect; and
(hm) The a certificate duly executed by a Responsible Officer of the Borrower certifying that no Default or Event of Default shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (occurred and be continuing on the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, Second Amendment Effective Date or after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) this Amendment. The Administrative Agent shall have received from notify the Borrower any fees required in connection with and the Lenders of the Second Amendment Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Amendment in Dollars for shall not become effective unless each of the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent foregoing conditions is satisfied at or prior to 12:00 5:00 p.m., New York City time time, on September 24July 15, 2010 (2004 and the “Consent Deadline” and each such Lender, a “Consenting Lender”)amendments described herein shall not become effective.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This The effectiveness of this Amendment shall become effective only upon be subject to the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):precedent:
(a) The Administrative Agent Lender shall have received counterparts of this Amendment duly executed by each of the Borrowers;
(b) The Lender shall have received a duly executed counterpart signature page Certificate of the Secretary of ARC, certifying that this Amendment has been duly authorized by the Borrower, Boards of Directors of ARC and each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.its Subsidiaries;
(c) The Administrative Agent Borrowers shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel delivered to the Loan PartiesLender evidence that Wynnchurch has executed and delivered to the Borrowers a written amendment and waiver with respect to the Subordinated Debt Documents in form and substance reasonably acceptable to the Lender, each dated as pursuant to which Wynnchurch shall have waived all existing defaults of the Amendment Effective Date Borrowers under the Subordinated Debt Documents and reasonably satisfactory to amended the Administrative Agent.financial covenant provisions of the Subordinated Debt Documents in a manner consistent with the financial covenant amendments set forth in this Amendment;
(d) Each The Lender shall have received from Wynnchurch a certificate pursuant to which Wynnchurch shall have (i) ratified and confirmed its obligations under the Wynnchurch Guaranty, (ii) made the representations and warranties contained in the first sentence of Section 9(e) of the conditions set forth Wynnchurch Guaranty as of [June 30, 2003], (iii) certified as to the continued veracity of the representations and warranties contained in Section 4.02 9 of the Amended Wynnchurch Guaranty, other than those representations and Restated Credit Agreement shall be satisfied as warranties contained in the first sentence of Section 9(e) of the Amendment Effective Date.Wynnchurch Guaranty, and (iv) shall have confirmed Wynnchurch’s compliance with Section 11 of the Wynnchurch Guaranty;
(e) The Administrative Agent Lender shall have received a certificate of a Responsible Officer written acknowledgement from Wynnchurch with respect to the existence of the BorrowerJune 30, certifying 2003 Events of Default and the conditions precedent set forth in Sections 4.02(a) and (b) of modifications to the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.contemplated by this Amendment; and
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent Lender shall have received from the Borrower any fees required Borrowers, an amendment fee in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page amount equal to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)$25,000.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This The consent in Section 1 of this Amendment and the amendments in Section 2 of this Amendment shall become be effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement of the following conditions date (the date of satisfaction or waiver of such conditions being referred to herein as the “Second Amendment Effective Date”):) the following conditions are satisfied:
(a) The the Administrative Agent shall have received a duly executed counterpart signature page Agent’s receipt of counterparts of this Amendment duly executed by the Borrower, the Administrative Agent, Lenders constituting Required Lenders and each Lender increasing its Revolving Loan Commitment pursuant to this Amendment;
(b) the Administrative Agent’s receipt of a reaffirmation (the “Reaffirmation”) of the BorrowerGuarantee by the Guarantors, in the form of Exhibit A, duly executed by each Guarantor party thereto;
(c) the Administrative Agent’s subsidiaries listed on receipt of (i) such documents or certificates with respect to legal matters or corporate or other proceedings related to this Amendment or the signature pages hereto, transactions contemplated hereby as may be reasonably requested by the Required Lenders, Term B-2 Lenders holding Administrative Agent and (ii) a majority in principal amount of Term B-2 Loans, favorable written opinion (addressed to the Administrative Agent and the Collateral Agent.
(bLenders and dated the date hereof) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned counsel to the Borrower any Note held by it prior to and the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by itGuarantors, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date in form and substance reasonably satisfactory to the Administrative Agent.Agent and its counsel and covering such matters relating to the Borrower and the Guarantors, the Financing Documents, this Amendment or the Transactions as the Administrative Agent shall reasonably request;
(d) Each the Administrative Agent’s receipt of a certificate signed by the President, a Vice President or a Financial Officer of the Borrower certifying that, after giving effect to this Amendment, the Borrower is in compliance with the conditions set forth contained in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied (as of the Amendment Effective Date.amended by this Amendment);
(e) The the Administrative Agent shall have received a certificate Agent’s receipt of a Responsible Officer evidence reasonably satisfactory to it that, on or prior to March 31, 2016, the GATR Acquisition has been consummated or, substantially concurrently with the effectiveness of the Borrowerthis Amendment, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.will be consummated;
(f) The the Administrative Agent Agent’s receipt of an effective amendment to, or restatement of, the Note Purchase and Private Shelf Agreement (the “Private Placement”) dated as of March 12, 2013 by and among the Borrower, the guarantors party thereto, Prudential Investment Management, Inc. and the other purchasers party thereto, which amendment shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Propertypermit the consummation of the GATR Acquisition and shall otherwise amend the Private Placement on terms no more restrictive than those set forth in this Amendment;
(g) the Administrative Agent shall have made such reallocations of each Lender’s Revolving Credit Exposure under the Credit Agreement as are necessary in order that the Revolving Credit Exposure with respect to such Lender reflects the pro rata share of the aggregate Revolving Credit Exposure set forth in Schedule 2.01 for such Lender under the Credit Agreement as amended hereby. The Borrower shall have paid hereby agrees to compensate each Lender for any and all reasonable losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurodollar Loans and the reallocation described in this clause (g), in each case on the terms and in the manner set forth in Section 2.15 of the Credit Agreement; and
(h) the Administrative Agent’s (and its affiliates) and the Lenders’ receipt of all fees and expenses then due and owing under the Credit Agreement, the other Financing Documents or under any other applicable letter agreement, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be reimbursed or paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Borrower under the Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) Agreement or other applicable document. The Administrative Agent shall have received from notify the Borrower any fees required in connection with this Amendment in Dollars for and the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment Lenders of the Term B-2 Loans pursuant to Section VII(h)(b) Second Amendment Effective Date, and such notice shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended conclusive and Restated Credit Agreementbinding.
Appears in 1 contract
Sources: Credit Agreement (Cubic Corp /De/)
Conditions to Effectiveness. This Amendment The amendment in Section 2 shall become be effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement date on which all of the following conditions in this Section 4 are satisfied or waived, which date, the parties hereto acknowledge, is May 15, 2023 (the date of satisfaction or waiver of such conditions being referred to herein as date, the “Twelfth Amendment Effective Date”):).
(a) The Administrative Agent (or its counsel) shall have received received:
(i) from each of (a) Falcon Aero Holdco LLC, a Delaware limited liability company (“Falcon Holdco”) and (b) Falcon Aero Holdings LLC, a Delaware limited liability company (“Falcon Holdings”, and together with Falcon Holdco, the “Falcon Subsidiaries”), (A) an absolute and unconditional guaranty of the timely repayment of the Obligations and the due and punctual performance of the obligations of Borrower under the Loan Documents, which guaranty shall be satisfactory to Administrative Agent in form and substance and (B) a joinder to the Subsidiary Security Agreement or a security agreement in form and substance acceptable to the Administrative Agent; provided that, for the avoidance of doubt, no lien shall be granted on (and the Collateral shall not include) any trust interest in either (1) TVPX 12372 Business Trust, a Utah business trust or (2) TVPX 12371 Statutory Trust, a Wyoming business trust;
(ii) counterparts of this Twelfth Amendment duly executed counterpart signature page by each of the parties hereto (other than the Administrative Agent);
(iii) an “omnibus certificate” of each Falcon Subsidiary, each Guarantor Subsidiary and the Borrower, which shall contain the names and signatures of the officers of such Person authorized to execute the Loan Documents to which such Person is a party and which shall certify to the truth, correctness and completeness of the following, which shall be exhibits attached thereto: (1) a copy of resolutions duly adopted by the board of directors or other governing body of such Person, which shall be in full force and effect on the Twelfth Amendment Effective Date, authorizing the execution of this Twelfth Amendment and the other Loan Documents delivered or to be delivered in connection herewith and the consummation of the transactions contemplated herein and therein, (2) a copy of the charter documents of such Person and all amendments thereto, certified by the appropriate official of such Person’s state of organization or incorporation, as applicable and (3) a copy of the limited liability company agreement or bylaws of such Person, as applicable, and all amendments thereto;
(iv) a certificate, dated as of the Twelfth Amendment Effective Date and executed by an Authorized Officer of the Borrower, certifying to the satisfaction of the conditions set forth in Section 4(c) and (d);
(v) a certificate (or certificates) of the due formation, valid existence and good standing, as applicable, of each Falcon Subsidiary, each Guarantor Subsidiary and the Borrower in its state of organization or incorporation, as applicable, issued by the appropriate authorities of such jurisdiction;
(vi) a favorable opinion of K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, special New York and Texas counsel for the Borrower, each of Falcon Subsidiary, and the Borrower’s subsidiaries listed on Guarantor Subsidiaries, in form and substance reasonably satisfactory to the signature pages heretoLender, the Required Lendersas to customary matters, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loansincluding without limitation, the due incorporation, due authorization, execution and delivery, enforceability, compliance with applicable laws, non-contravention, perfection, and investment company act matters; and
(b) The Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable received all fees and expenses required to the order of such Term B-5 Lender duly executed be paid by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it on or prior to the Twelfth Amendment Effective Date, in the case of such expenses, to the extent provided in Section 10.4(a) of the Existing Credit Agreement and invoiced at least one (1) Business Day prior to the Twelfth Amendment Effective Date.
(c) The Administrative Agent No Default or Event of Default shall have received such opinions as may reasonably occurred and be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated continuing as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Twelfth Amendment Effective Date.
(ed) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent representations and warranties set forth in Sections 4.02(a) Section 3 shall be true and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and correct as of the Twelfth Amendment Effective Date.
Date (f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination except with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees representations and out-of-pocket expenses (including the reasonable legal fees warranties expressly made only as of an earlier date, which representations were true and expenses correct as of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loanssuch earlier date).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (W&t Offshore Inc)
Conditions to Effectiveness. This Amendment shall become ---------- --------------------------- effective only upon when the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement Bank has received all of the following conditions (documents, each dated the date of satisfaction or waiver receipt thereof by the Bank (which date shall be the same for all such documents), in form and substance satisfactory to the Bank and in the number of such conditions being referred to herein as originals requested by the “Amendment Effective Date”):Bank:
(a) The Administrative Agent shall have received a this Amendment and the Teletransmission Agreement, duly executed counterpart signature page by the Borrower;
(b) an amendment to the Pledge and Security Agreement for the purpose of amending Section 18 thereof (the "Pledge and Security Agreement Amendment"), --------------------------------------- duly executed by the Borrower;
(c) a modification to the Deed of Trust for the purpose, among others, of making reference therein to the Letters of Credit and this Amendment (the "Deed of Trust Modification"), duly executed by the Borrower, each for recording in --------------------------- the Official Records of the Borrower’s subsidiaries listed on the signature pages heretoSan Bernardino, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent Riverside and the Collateral Agent.Los Angeles Counties;
(bd) Each Term Lender executing an amendment to the Guaranty for the purpose of amending Section 12 thereof, together with a consent to this Amendment as a “Term B-5 Lender” shall have received(collectively the "Guaranty Amendment"), if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extendedGuarantor; provided that such Term B-5 Lender shall have returned -------------------
(e) an amendment to the Borrower Stock Pledge Agreement for the purpose of amending Section 16 thereof (the "Stock Pledge Agreement Amendment"), duly -------------------------------- executed by the Borrower;
(f) copies of previously adopted resolutions of the Board of Directors of each Loan Party approving those of this Amendment, the Teletransmission Agreement, the Pledge and Security Agreement Amendment, the Deed of Trust Modification, the Guaranty Amendment and the Stock Pledge Agreement Amendment (the "Amendment Documents") to which such Loan Party is or is to be a party, and ------------------- copies of all other documents evidencing necessary corporate action or Governmental Action, if any, with respect to such Amendment Documents, certified by the Secretary or an Assistant Secretary of such Loan Party to be correct and complete and in full force and effect as of the date of execution of each such document;
(g) a certificate of the Secretary or an Assistant Secretary of each Loan Party as to the incumbency, and setting forth a specimen signature, of each of the persons who has signed or will sign any Note held Amendment Document, or any other document delivered hereunder, on behalf of such Loan Party;
(h) one or more certificates of the appropriate Governmental Persons of the States of Delaware and California, dated a recent date, certifying that (i) such Loan Party has paid all franchise taxes in Delaware and California to the date of such certificate and (ii) such Loan Party is duly incorporated and in good standing under the laws of Delaware and is in good standing under the laws of California;
(i) a certificate of each Loan Party, signed on behalf of such Loan Party by it prior its President or a Vice President and its Secretary or an Assistant Secretary, certifying (i) that there has been no amendment on or after the Closing Date to the bylaws of such Loan Party or to any of the Material Contracts and the Commission Agreement to which such Loan Party is a party, except as attached to such certificate and certified by such Loan Party to be correct and complete and in full force and effect, (ii) that the charter documents (including any amendments and other modifications) of such Loan Party delivered to the Bank on or about January 30, 1997 have not been further amended or otherwise further modified, (iii) that the representations and warranties of such Loan Party contained in each Credit Document are correct in all material respects on and as of the date of such certificate, before and after giving effect to the Amendment Effective Date.Documents, as though made on and as of the date of such certificate, and (iv) that no event has occurred and is continuing, or would result from the effectiveness of the Amendment Documents, that constitutes a Default or an Event of Default;
(cj) The Administrative Agent shall have received such one or more favorable opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York legal counsel to the Loan Parties, each dated as of to the effect that the Amendment Effective Date Documents have been duly authorized, executed and reasonably satisfactory delivered by the Loan Parties, as applicable, and confirming the opinion furnished on September 30, 1994 pursuant to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b4.1(a)(viii) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment references therein to the Administrative Agent at or prior Credit Documents to 12:00 p.m., New York City time on September 24, 2010 (mean the “Consent Deadline” and each such Lender, a “Consenting Lender”).Credit Documents as amended by the Amendment Documents; and
(k) Each prepayment of such other approvals, opinions and documents as the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit AgreementBank may reasonably request.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Kaiser Ventures Inc)
Conditions to Effectiveness. SECTION 4.1 This Amendment and the amendments to the Existing Note Purchase Agreement contained in Article II hereof shall become effective only upon the satisfaction (or waiver in accordance with Section 10.01 of by the Existing Credit Agreement Required Purchasers and the Fourth Amendment Note Purchasers) of the following conditions precedent (the date of satisfaction or waiver of such conditions being referred to herein as effectiveness, the “Fourth Amendment Effective Date”):
(a) The Administrative Agent the Required Purchasers and the Fourth Amendment Note Purchasers (or, in each case, their counsel) shall have received a duly executed counterpart signature page counterparts of this Amendment by Amendment, that when taken together, bear the Borrower, each signature of the Borrower’s subsidiaries listed on Issuer, Intermediate Holdings, Holdings, Opco, the signature pages Subsidiary Guarantors party hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent Fourth Amendment Note Purchasers and the Collateral Agent.Purchasers constituting the Required Purchasers;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” the Issuer shall have receivedpaid all reasonable and documented out-of-pocket fees, if requested by it, one charges and disbursements due and payable under the Note Documents on or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Fourth Amendment Effective Date on the Fourth Amendment Effective Date.
, including, without limitation, all reasonable and documented out-of-pocket fees, charges and disbursements of (ci) The Administrative Agent shall have received such opinions as may reasonably be requested by itthe Required Purchasers and the Fourth Amendment Note Purchasers, including an opinion of Ropes (ii) ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan PartiesFourth Amendment Note Purchasers, each dated as of (iii) the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) Purchaser Representative and (biv) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by , counsel to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this AmendmentPurchaser Representative, to the extent invoiced the Issuer has received a reasonably-detailed invoice therefor at least one Business Day prior to the Fourth Amendment Effective Date (or such later date hereof.to which the Issuer may reasonably agree);
(hc) The Borrower the Required Purchasers party hereto (or their counsel) shall have issued at least $500.0 million aggregate principal amount received a certificate dated as of senior unsecured notes (the “New Senior Notes”) and used Fourth Amendment Effective Date signed by a Responsible Officer of the net proceeds thereof to prepay (a) firstIssuer certifying that as of the Fourth Amendment Effective Date, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as the conditions set forth in Section 4.03(c) and Section 4.03(d) of the preceding clause Existing Note Purchase Agreement are satisfied; and
(a)d) the Required Purchasers (or their counsel) shall have received the following ancillary deliverables, the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
for each Note Party: (i) After giving effect to (i) the prepayment of Term Loans from the net proceeds a certificate of the New Senior Notes secretary or other officer of such Note Party in charge of maintaining books and records of such Note Party, dated as of the Fourth Amendment Effective Date, (A) certifying as to the names and signatures of each officer of such Note Party authorized to execute and deliver this Amendment, (B) attaching complete and correct copies of the Organizational Documents of such Note Party as in effect on the date of such certification (or certifying that such Organizational Documents have not been amended or otherwise modified since the Third Amendment Effective Date) and (C) attaching resolutions of such Note Party’s Board of Directors or other appropriate governing body approving and authorizing the execution, delivery and performance of this Amendment and the Amended Note Purchase Agreement; and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Fourth Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment Effective Date, certificates attesting to the Administrative Agent at or prior to 12:00 p.m.good standing of such Note Party in its jurisdiction of organization, New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, dated as of a “Consenting Lender”)recent date.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Note Purchase Agreement (ATI Physical Therapy, Inc.)
Conditions to Effectiveness. This Amendment The amendments set forth in Section 2 of this amendment shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of date on which the following conditions precedent have been satisfied or waived (the first date of satisfaction or waiver of on which such conditions being referred to herein as shall have been so satisfied or waived, the “First Amendment Effective Date”):
(a) The Administrative Agent Company, New York Life and the Holders shall have received executed and delivered a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral AgentAmendment.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” The Holders shall have received, if requested by it, one or more replacement Notes payable received a fully executed copy of an amendment agreement to the order Existing Credit Facility, dated as of such Term B-5 Lender duly executed April 17, 2020, by and among the Borrower in substantially the form of Annex A heretoCompany, evidencing such Term B-5 Lenders’ Term B-5 LoansJPMorgan Chase Bank, N.A., as extended; provided that such Term B-5 Lender shall have returned administrative agent, and the lenders party thereto, in form and substance satisfactory to the Borrower any Note held by it prior to the Amendment Effective DateRequired Holders.
(c) The Administrative Agent Holders shall have received such opinions as may reasonably be requested by it, including a fully executed copy of an opinion of Ropes & ▇▇▇▇ LLP, New York counsel amendment agreement to the Loan PartiesMetLife Note Agreement, each dated as of the Amendment Effective Date date hereof (the “MetLife Amendment”), by and reasonably among the Company, Metropolitan Life Insurance Company and MetLife Investment Advisors Company, LLC and the other holders of notes party thereto, in form and substance satisfactory to the Administrative AgentRequired Holders.
(d) Each The Holders shall have received a fully executed copy of an amendment agreement to the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied Prudential Shelf Agreement, dated as of the Amendment Effective Datedate hereof (the “Prudential Amendment”), by and among the Company, PGIM, Inc., The Prudential Insurance Company of America and the other holders of notes party thereto, in form and substance satisfactory to the Required Holders.
(e) The Administrative Agent Holders shall have received a certificate of signed by a Responsible Officer of the Borrower, Company certifying that the conditions precedent set forth specified in Sections 4.02(aclauses (h) and (bi) of the Amended and Restated Credit Agreement shall this Section 5 have been satisfied on and as of the First Amendment Effective Date.
(f) The Administrative Agent Holders shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect certificate of a Secretary or Assistant Secretary of the Company, dated as of the date hereof, (A) certifying as to each Mortgaged Property;the resolutions attached thereto, incumbency of applicable officers and other corporate proceedings relating to the authorization, execution and delivery of this Amendment, and (B) attaching true, correct and complete copies of the corporate charter and bylaws of the Company or certifying that the corporate charter and bylaws most recently provided to the Holders are still in full force and effect and have not since been amended, restated, supplemented or otherwise modified in any respect.
(g) The Borrower Holders shall have paid all reasonable fees received a good standing certificate for the Company from the Secretary of State of Delaware, dated of a recent date and out-of-pocket expenses (including such other evidence of the reasonable legal fees status of the Company as New York Life and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofHolders may reasonably request.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount Each of senior unsecured notes (the “New Senior Notes”) representations and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as warranties set forth in Section 4 above shall be true and correct as of the preceding clause date of the execution and delivery of this Amendment and as of the First Amendment Effective Date as if made on and as of such date (a)or, the Term B-2 Loans on if any such representation and warranty is expressly stated to have been made as of a pro rata basis (before giving effect to extensions specific date, as of Term B-2 Loans to Term B-5 Loanssuch specific date).
(i) After No Default or Event of Default shall have occurred and be continuing on and as of the First Amendment Effective Date or immediately after giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basisthis Amendment.
(j) The Administrative Agent Each Holder shall have received from payment of an amendment fee of 10 basis points (0.10%) of the Borrower any fees required in connection with this Amendment in Dollars for principal amount of the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each outstanding Notes held by such Lender, a “Consenting Lender”)Holder.
(k) Each prepayment The Company shall have paid the reasonable fees and disbursements of the Term B-2 Loans pursuant to Holders’ special counsel in accordance with Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement7 below.
Appears in 1 contract
Conditions to Effectiveness. This The effectiveness of this Amendment shall become effective only upon (including the amendments contained in Article V and the agreements contained in Articles I, II, III and IV) are subject to the satisfaction (or waiver in accordance with Section 10.01 of the Existing Credit Agreement written waiver) of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “First Amendment Effective Date”):
SECTION 6.1 This Amendment shall have been duly executed by the Company, the Tranche B-3 Borrowers, the Tranche B-1 Term Loan Lenders (awhether pursuant to the execution and delivery of a Lender Consent or a Term Loan Joinder, as applicable), the Tranche B-2 Term Loan Lenders (pursuant to the execution and delivery of a Term Loan Joinder), the Tranche B-3 Term Loan Lenders (pursuant to the execution and delivery of a Term Loan Joinder), the Lenders under the Credit Agreement constituting at least the Required Lenders, the 2018 Revolving Lenders, the Swingline Lenders, the Issuers and the Administrative Agent, and delivered to the Administrative Agent. The Term Loan Joinders shall have been duly executed by each Additional Tranche B-1 Term Loan Lender, such that, upon such execution by all Additional Tranche B-1 Term Loan Lenders, the aggregate principal amount of the Exchanged U.S. Dollar Term Loans and the Additional Tranche B-1 Term Loans are equal to the aggregate principal amount of the U.S. Dollar Term Loans outstanding immediately prior to the First Amendment Effective Date;
SECTION 6.2 All fees and expenses required to be paid hereunder or pursuant to the Credit Agreement and that certain Engagement Letter, dated as of April 12, 2018, by and between the Borrower, PNC Capital Markets LLC (the “RCF Refinancing Arranger”) and Deutsche Bank Securities Inc. (the “Term Loan Refinancing Arranger”, and together with the RCF Refinancing Arranger, the “Refinancing Arrangers”) shall have been paid 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 Refinancing Arrangers, the Administrative Agent and their respective Affiliates in connection with the execution and delivery of this Amendment, in each case to the extent required by Section 10.3 of the Credit Agreement;
SECTION 6.3 The Administrative Agent shall have received with respect to each Obligor (i) a copy of good standing certificates, dated a date reasonably close to the First Amendment Effective Date, for the Company, each Tranche B-3 Borrower (other than the Tranche B-3 German Borrower) and each other Obligor and (ii) a certificate, dated as of the First Amendment Effective Date duly executed and delivered by each Obligor’s Secretary or Assistant Secretary, any director, managing member or general partner, as applicable, as to (A) resolutions of such Person’s board of directors (or shareholders, in the case of a German Obligor, or other managing or governing body, in the case of other than a corporation) then in full force and effect authorizing the execution, delivery and performance of this Amendment and any related Loan Documents and the borrowings and transactions contemplated hereby and thereby, (B) the incumbency and signatures of those of its officers, directors, managing member or general partner, as applicable, authorized to act with respect to this Amendment and each Loan Document to be executed by such Person, and (C) the full force and validity of each Organic Document of such Person (and copies of all amendments thereof, if any, since the Closing Date), upon which certificates each Secured Party may conclusively rely until it shall have received a further certificate of the Secretary, Assistant Secretary, any director, managing member or general partner, as applicable, of any such Person canceling or amending the prior certificate of such Person;
SECTION 6.4 The Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by the Borrowercertificate, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the First Amendment Effective Date and duly executed and delivered by an Authorized Officer of each Borrower, in which certificate such Borrower shall agree and acknowledge that the statements made herein shall be deemed to be true and correct representations and warranties of such Borrower in all material respects (or in all respects if qualified by materiality or Material Adverse Effect) as of such date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects if qualified by materiality or Material Adverse Effect) as of such earlier date) (the “First Amendment Effective Date Certificate”). All documents and agreements required to be appended to the First Amendment Effective Date Certificate shall be in form and substance reasonably satisfactory to the Administrative Agent., shall have been executed and delivered by the requisite parties, and shall be in full force and effect;
(d) Each SECTION 6.5 The Administrative Agent shall have received, for the account of each Lender that has requested a Note, such Lender’s Notes duly executed and delivered by an Authorized Officer of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.applicable Borrowers;
(e) SECTION 6.6 The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrowersolvency certificate, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and dated as of the First Amendment Effective Date.Date and duly executed and delivered by the chief financial officer of the Company, in form and substance reasonably satisfactory to the Administrative Agent, certifying that the Company and its Subsidiaries, on a consolidated basis, are Solvent
(f) SECTION 6.7 The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect opinions, each dated the Closing Date and addressed to each Mortgaged Property;
the Agents, the Issuer and all Lenders, from: (ga) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ Day, Ohio, Delaware, New York and Pennsylvania counsel to the Obligors; (b) ▇▇▇▇▇ Day, Germany, German counsel to the German Borrower with respect to capacity and authority; (c) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Germany, German counsel to the Administrative Agent with respect to the validity and enforceability of the German Transaction Security Documents; and (d) incurred as applicable, local counsel to the Obligors in each other jurisdiction in which an Obligor is organized, in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
SECTION 6.8 Within five Business Days’ prior to the First Amendment Effective Date, the Administrative Agent shall have received copies of all Patriot Act Disclosures as reasonably requested by the Administrative Agent;
SECTION 6.9 No Default or Event of Default has occurred and is continuing on the First Amendment Effective Date both before and immediately after giving effect to the transactions contemplated hereby;
SECTION 6.10 The representations and warranties set forth in each Loan Document shall, ▇▇▇▇▇ Fargo Securitiesin each case, LLC be true and Deutsche Bank Securities Inc. correct in connection all material respects (or in all respects if qualified by materiality or Material Adverse Effect) with the preparationsame effect as if then made (unless stated to relate solely to an earlier date, negotiation in which case such representations and execution warranties shall be true and correct in all material respects (or in all respects if qualified by materiality or Material Adverse Effect) as of this Amendment or otherwise required such earlier date);
SECTION 6.11 Substantially simultaneously with the receipt of the proceeds of the Additional Tranche B-1 Term Loans and the Additional Tranche B-2 Term Loans the Borrower shall have applied the aggregate proceeds of the Additional Tranche B-1 Term Loans and the Additional Tranche B-2 Term Loans to be paid prepay in connection with this Amendmentfull the principal amount of all U.S. Dollar Term Loans other than Exchanged U.S. Dollar Term Loans and all Euro Term Loans other than Exchanged Euro Term Loans, respectively, including all amounts due under Section 1.1 and Articles II and III hereunder and any other cost reimbursements and other Obligations, if any, then due and owing to such Non-Exchanging U.S. Dollar Term Loan Lenders under the Credit Agreement (prior to the extent invoiced at least First Amendment Effective Date);
SECTION 6.12 A notarized share pledge agreement in relation to all of the shares in the Tranche B-3 German Borrower governed under German law;
SECTION 6.13 The Administrative Agent shall have received a notice of borrowing, prior to 12:00 noon, New York City time, one Business Day prior to the date hereof.First Amendment Effective Date; and
(h) SECTION 6.14 The Borrower CAM Agreement substantially in the form attached hereto as Exhibit B shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated been duly executed by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior and the Lenders party to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment Credit Agreement as of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit AgreementFirst Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Ferro Corp)
Conditions to Effectiveness. (a) This Amendment (other than those amendments specified in Section 3.1(b) below) shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of date (the Existing Credit Agreement of "Fifth Amendment Effective Date") on which the following conditions are satisfied (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”waived):
(ai) The the Administrative Agent shall have received this Amendment, executed and delivered by a duly executed counterpart signature page authorized officer of this Amendment by the Borrower, each of the US Borrower’s subsidiaries listed on , English Bidco, the signature pages English Borrower, the Euro Borrower, the Subsidiaries parties hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, and any other requisite Lenders under the Credit Agreement;
(ii) the Administrative Agent and the Collateral Agent.Lenders shall have received all fees required to be paid and expenses required to be paid as of the Fifth Amendment Effective Date, including unpaid invoiced legal fees of counsel to the Administrative Agent and the Lenders;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable The amendments herein with respect to the order US Tranche C Term Loans and the 2002 Term Facility and the amendments in Sections 2.6 through 2.8 herein shall become effective on the date on which the following conditions are satisfied (assuming that the conditions set forth in Section 3.1(b) of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall Third Amendment have returned to the Borrower any Note held by it prior to the Amendment Effective Date.become effective):
(ci) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of term sheet for the Amendment Effective Date.
(e) The US Tranche C Term Loans previously delivered to the Administrative Agent shall have received been met in all material respects, the Tranche C Term Loan Lenders shall have executed a certificate of a Responsible Officer of counterpart to this Amendment, delivered any necessary administrative questionnaires to the Borrower, certifying Administrative Agent and become parties to the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent US Borrower shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses gross cash proceeds of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (95,000,000 therefrom and shall have applied the “New Senior Notes”) and used Net Cash Proceeds thereof in accordance with the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds terms of the New Senior Notes and Credit Agreement; and
(ii) the conversion of $500.0 million principal amount of 2002 Term B-2 Loans into Term B-5 Loans as contemplated by Facility shall have closed and the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent US Borrower shall have received gross cash proceeds of at least $94,000,000 therefrom and at least $1,000,000 from the Borrower any fees required 2002 Capital Contribution and shall have applied the Net Cash Proceeds thereof in connection accordance with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment terms of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Jl French Automotive Casting Inc)
Conditions to Effectiveness. This Amendment shall become be effective only immediately upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(a) The Administrative Agent shall have received a duly executed counterpart signature page execution and delivery of this Amendment by Agent and each Lender, acceptance hereof by Borrowers and the Borrower, acknowledgment hereof by each guarantor of the Borrower’s subsidiaries listed on Loan Agreement. Very truly yours, AMSOUTH BANK, as Agent and a Lender By --------------------------------------- Title: ----------------------------------- Acknowledged and agreed to this 21 day of February, 2002. SOUTHERN ENERGY HOMES, INC. AL/TEX HOMES, INC. WENCO FINANCE, INC. MH TRANSPORT, INC. SOUTHERN ENERGY HOMES RETAIL CORP. Each By ----------------------------- Title ------------------------------- ACKNOWLEDGMENT Each of the signature pages heretoundersigned as of the date first written above (a) consents and agrees to the foregoing Amendment No. 1, (b) reaffirms its obligations under its Guaranty in favor of the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as other Lenders and under the other Loan Documents to which it is a “Term B-5 Lender” shall have receivedparty, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
and (c) The Administrative Agent agrees that each reference in the Loan Documents to which it is a party to the Loan Agreement shall have received such opinions be a reference to the Loan Agreement as may reasonably be requested amended by itAmendment No. 1. Dated: February 21, including an opinion of Ropes & 2002 SOUTHERN ENERGY HOMES OF NORTH CAROLINA, INC. SOUTHERN ENERGY HOMES OF PENNSYLVANIA, INC. BR AGENCY, INC. Each By ---------------------------------- Title ------------------------------------ AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT August 30, 2002 Southern Energy Homes, Inc. AL/Tex Homes, Inc. Wenco Finance, Inc. MH Transport, Inc. Southern Energy Homes Retail Corp. 144 Corporate Way Addison, Alabama 35540 Ladies and Gentlemen: ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ & ▇▇ ▇▇▇ Loan and Security Agreement dated as of March 9, 2001 among each of you ("Borrowers"), the Lenders party thereto ("Lenders"), AmSouth Bank, as agent ("Agent") and AmSouth Capital Corp., as administrative agent (as amended, the "Loan Agreement"). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Loan Agreement. Borrowers have requested that Lenders agree to amend the Loan Agreement in certain respects. Lende▇▇ ▇▇▇▇ agreed to the foregoing, on the terms and conditions co▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofherein.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Southern Energy Homes Inc)
Conditions to Effectiveness. This Amendment shall become effective only upon 1. The waivers to the satisfaction or waiver Indenture set forth in accordance with Section 10.01 II of this Agreement and the Existing Credit other agreements set forth in clause 3 through clause 6 of Section V of this Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):shall:
(a) The Administrative Agent become effective on such date (the “Waiver and Agreement Effective Date”) as (i) the commitment of the Holder Parties shall have received a duly been accepted by the Company and the Parent and become effective under and in accordance with that certain commitment letter of even date herewith among the Company, the Parent and the Holder Parties relating to the issuance and purchase of the Additional Notes (as amended, supplemented or otherwise modified, the “Commitment Letter”); (ii) the Holder Parties shall have delivered to the Trustee and the Company an executed counterpart signature page to this Agreement; (iii) the Company and the Guarantors shall have delivered to the Trustee an executed counterpart to this Agreement; (iv) the Trustee shall have executed this Agreement; (v) the Company shall have obtained the consent of the requisite lenders under the Revolving Credit Agreement to all transactions undertaken and agreements entered into pursuant to or in connection with this Amendment Agreement and the Plan, including, without limitation, the issuance of the Additional Notes to certain Holders and the payment of the Consent Fee to all Consenting Holders; and (vi) the Board of the Company shall have approved the execution by the Borrower, Company of the Supplemental Indenture and the Company and each of the Borrower’s subsidiaries listed on Guarantors shall have delivered to the signature pages hereto, Trustee an executed counterpart to the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
Supplemental Indenture. (b) Each Term Lender executing this Amendment as a cease to be effective at 5 p.m. on the date (the “Term B-5 Lender” Waiver and Agreement Expiration Date”) that is 5 days after (i) the earlier of (x) the 2nd Business Days following the Waiver and Agreement Effective Date and (y) May 30, 2007, unless, on or prior to such date, the Chapter 11 Cases shall have receivedbeen filed; (ii) the 10th day following the filing of the Chapter 11 Cases unless, if requested on or prior to such 10th day, the Consent Solicitation shall have been commenced in accordance with clause 1 of Section V; (iii) the 36th day following the filing of the Chapter 11 Cases unless, on or prior to such 36th day, the Bankruptcy Court shall have approved the payment of the Consent Fee contemplated by it, one or more replacement Notes payable Section V to the order Holders entitled thereto and the issuance of Additional Notes contemplated under the Commitment Letter to be issued; (iv) the 41st day following the filing of the Chapter 11 Cases unless, on or prior to such Term B-5 Lender duly executed 41st day, the Additional Notes contemplated under the Commitment Letter to be issued shall have been issued or the 46th day following the Chapter 11 Cases unless, on or prior to such 46th day the Consent Fee shall have been paid (unless in either case the Additional Notes have not been so issued, and the failure to issue such Additional Notes on or prior to such 41st day is caused solely by a failure of any of the proposed purchasers thereof to be ready, willing and able to purchase the Additional Notes contemplated under the Commitment Letter to be issued), (v) the 41st day following the filing of the Chapter 11 Cases unless, on or prior to such 41st day, the Bankruptcy Court shall have issued a final order, substantially in the form attached hereto as Exhibit 3 (with any modification as agreed upon by the Borrower Company, the Parent and the Trustee), granting adequate protection to the Holders pursuant to Sections 361 and 363 of the Bankruptcy Code, or (vi) 180 days after the filing of the Chapter 11 Cases unless, on or prior to such 180th day, the Chapter 11 Cases shall have been concluded and a plan of reorganization substantially in substantially the form of Annex A heretothe Plan, evidencing with such Term B-5 Lenders’ Term B-5 Loansmodifications as are described in Exhibit 1 and such other modifications as agreed to by the Trustee and the Company, as extended; shall have been confirmed by the Bankruptcy Court (provided that the agreement of the Trustee shall not be required if such Term B-5 Lender shall have returned modification does not materially affect the Holders).
2. In addition to the Borrower any Note held by it prior foregoing, the waivers to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions Indenture set forth in Section 4.02 II of this Agreement and the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent other agreements set forth in Sections 4.02(aclause 3 through clause 6 of Section V of this Agreement shall cease to be effective at 5 p.m. on the date (the “Waiver Termination Date”) and that is 5 days after the date that (a) the Chapter 11 Debtors file any motion to obtain credit under section 364 of the Bankruptcy Code or otherwise that is secured by a senior or pari passu lien on the Holders’ collateral, (b) a trustee or examiner with enlarged powers is appointed for service in the Chapter 11 Cases, (c) any of the Amended and Restated Credit Agreement shall have been satisfied on and as Chapter 11 Cases is converted to a case under chapter 7 of the Amendment Effective Date.
Bankruptcy Code or (fd) The Administrative Agent shall have received there is in force any order, decree or ruling by any court or governmental body having jurisdiction, or any threatened or pending complaint of a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses governmental body praying for an order, decree or ruling of a court restraining or enjoining the consummation of or rendering illegal the transactions contemplated by this Agreement and/or the Plan (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment issuance or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds purchase of the New Senior Notes and (iiAdditional Notes) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreementunless, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 such 5th day the Trustee shall have consented in writing to the continuance of such waivers (in the “Consent Deadline” and each case of the waivers) or the extension of such Lender, a “Consenting Lender”agreements (in the case of the agreements).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Waiver and Agreement (Insight Health Services Holdings Corp)
Conditions to Effectiveness. This Amendment shall become effective only as of the date set forth above upon the receipt subject to the satisfaction or waiver in accordance with Section 10.01 by the Administrative Agent on behalf of the Existing Credit Agreement Required Lenders of the following conditions precedent (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(a) The A. each of the representations and warranties set forth in Section 4 of this Amendment shall be true and correct in all material respects as of the date of this Amendment;
B. the Administrative Agent shall have received a duly executed counterpart signature page of to this Amendment Amendment, duly executed and delivered by the Borrower, the Parent, each of the Borrower’s subsidiaries listed on the signature pages hereto, Subsidiary Guarantor and the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, ;
C. the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have receivedreceived an amendment fee letter, if requested duly executed and delivered by itthe Borrower, one or more replacement Notes payable in form and substance satisfactory to the order of such Term B-5 Lender duly executed by Administrative Agent;
D. the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender Administrative Agent shall have returned received a final executed copy of the Wireless Data and Application Agreement entered into between Sprint/United Management Company and NextRadio LLC, such agreement to be in form and substance reasonably satisfactory to the Borrower any Note held by it prior to Administrative Agent;
E. the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions documents and certificates as the Administrative Agent or its counsel may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel request relating to the Loan Partiesorganization, each dated as existence and good standing of the New Subsidiary, the authorization of the transactions contemplated hereunder and under the Credit Documents, the incumbency of their respective authorized officers and any other legal matters relating to the New Subsidiary, this Amendment Effective Date or the transactions contemplated hereunder and reasonably under the Credit Documents, all in form and substance satisfactory to the Administrative Agent and its counsel;
F. the Administrative Agent shall have received the results of a recent Lien search in the jurisdictions where assets of the New Subsidiary are located, and such searches shall reveal no Liens on any of the assets of the New Subsidiary except for Liens permitted by Section 6.02 of the Credit Agreement;
G. the execution and delivery by the Subsidiary Guarantors of an Affirmation of Guaranty and Collateral Documents in the form of Exhibit A hereto; and
H. the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent.
(d) Each of , that the conditions set forth in Section 4.02 of Borrower has paid all fees and, to the Amended and Restated Credit Agreement shall be satisfied as of extent billed, expenses payable by the Borrower hereunder on the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 The effectiveness of the Existing Credit Agreement amendments, waivers and consents set forth in Section 1 of this Amendment and of the other provisions of this Amendment are subject to the substantially simultaneous satisfaction of each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as are satisfied, the “Twelfth Amendment Effective Date”):
(a) The (i) this Amendment is duly executed and delivered by the Borrowers, the Administrative Agent and Consenting Lenders constituting Required Lenders and (ii) at least 95% (or a different amount mutually agreed by the Company and the Majority Consenting Parties (as defined in the TSA)) of all Term B Lenders shall have executed a Lender Consent (Dollar Term B Loans) in the form attached hereto as Annex I-A or Lender Consent (Dollar Term B Loans) in the form attached hereto as Annex I-B, as applicable;
(b) the Administrative Agent, the Majority Ad Hoc Parties (as defined in the TSA) and the Majority Term Loan Parties (as defined in the TSA) shall have received evidence reasonably satisfactory to it that substantially concurrently with the Twelfth Amendment Effective Date, the “Transactions” (as defined in that certain Transaction Support Agreement, dated as of October 20, 2022 (as amended by that certain First Amendment thereto, dated as of November 28, 2022) (the “TSA”), by and among the Company, the other Company Parties (as defined therein) and the Consenting Parties (as defined therein)) that are required by the TSA to occur on the Twelfth Amendment Effective Date will be consummated in accordance with the terms of the TSA;
(c) the Administrative Agent, the Majority Ad Hoc Parties (as defined in the TSA) and the Majority Term Loan Parties (as defined in the TSA) shall have received evidence reasonably satisfactory to them that substantially concurrently with the Twelfth Amendment Effective Date, any required prepayment in cash of the New Dollar Term Loans and New Euro Term Loans as required pursuant to the terms of the TSA will occur;
(d) the Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by certificate, dated the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Twelfth Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each signed by a responsible officer of the conditions set forth Company, confirming the matters specified in Section 4.02 of the Amended 2(b) hereof and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.clause (e) below;
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent representations and warranties set forth in Sections 4.02(a) and (b) Article V of the Amended and Restated Existing Credit Agreement and in the other Loan Documents shall have been satisfied be true and correct in all material respects on and as of the Twelfth Amendment Effective Date.Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; #96335426v19
(f) The the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with received, for the account of the applicable Person, (a) any fees owing from the Company in respect to each Mortgaged Property;
of this Amendment, as separately agreed in writing by the Company, and (gb) The Borrower shall have paid reimbursement or payment of all the Administrative Agent’s reasonable fees and out-of-pocket out‑of‑pocket expenses (including the reasonable legal fees fees, charges and expenses disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPcounsel) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document, and invoiced to the extent invoiced Company at least one two Business Day Days prior to the date hereof.; and
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (ig) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from evidence reasonably satisfactory to it that, substantially concurrently with the Borrower Twelfth Amendment Effective Date, (x) all outstanding Revolving Credit Loans and Swing Line Loans (and accrued and unpaid interest thereon and any accrued commitment fees required in connection with this Amendment respect of any Revolving Credit Commitments) will be repaid in Dollars for the account full and (y) all Facility Letters of each Lender (other than Credit will be returned, cash collateralized, replaced or rolled in a Defaulting Lender) that has returned an executed signature page to this Amendment manner satisfactory to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”issuer thereof (and any accrued letter of credit or issuing fees thereon will be paid).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This The Additional Commitments and amendments set forth in this Increase and Amendment Agreement shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions date first set forth above (the date of satisfaction or waiver of such conditions being referred to herein as the “Second Amendment Effective Date”):) when each of the conditions set forth in this Section 5 shall have been satisfied:
(a) The the Administrative Agent shall have received counterparts of this Increase and Amendment Agreement, duly executed and delivered on behalf of (i) Borrower, (ii) the Lenders, (iii) each Issuing Bank, (iv) the Additional Lender, (vi) Holdings, (vii) each other Guarantor and (viii) each other Transaction Party;
(b) as of the Second Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing, or would occur immediately after giving effect to the transactions contemplated by this Increase and Amendment Agreement;
(c) each of the representations and warranties of the Transaction Parties set forth in Section 4 shall be true and correct in all material respects (or, as to any representations and warranties that are otherwise qualified as to materiality or Material Adverse Effect, in all respects)
(d) the Administrative Agent shall have received a duly completed and executed counterpart signature page of this Amendment by Note for the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Additional Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it extent requested prior to the Second Amendment Effective Date.Date as provided in Section 2.8(e) of the Credit Agreement;
(ce) The the Administrative Agent shall have received a certificate of the President, a Vice-President or the Chief Executive Officer of the Borrower dated the Second Amendment Effective Date and certifying as to the satisfaction of the conditions set forth in Section 5(b) and (c) of this Increase and Amendment Agreement;
(f) the Administrative Agent shall have received certificates of the secretary or an assistant secretary of each Transaction Party containing specimen signatures (or certifying as to specimen signatures previously provided to the Administrative Agent) of the persons authorized to execute Credit Documents on such Transaction Party’s behalf or any other documents provided for herein or therein, together with (x) copies of resolutions of the board of directors or other appropriate governing body of such Transaction Party authorizing the execution and delivery of this Increase and Amendment Agreement and the other Credit Documents to which such Transaction Party is a party (or certifying as to resolutions of such governing body previously provided to the Administrative Agent), (y) copies of such Transaction Party’s memorandum of association and articles of association or other organizational documents filed in its jurisdiction of incorporation, and bylaws and other governing documents, if any, of such Transaction Party (or certifying as to such documents previously provided to the Administrative Agent), and (z) a certificate of incorporation or organization and a certificate of good standing (or their equivalents), to the extent applicable in the relevant jurisdiction, from the appropriate Governmental Authority of such Transaction Party’s jurisdiction of incorporation or organization;
(g) the Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks and dated as may reasonably be requested by it, including an opinion of Ropes & the Second Amendment Effective Date) of ▇▇▇▇▇ ▇▇▇▇▇ LLP, New York counsel for the Transaction Parties covering such matters with respect to the Loan Transaction Parties, each dated as of this Increase and Amendment Agreement and any other Credit Documents coming into effect on the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Second Amendment Effective Date., and the transactions contemplated by such Credit Documents, as the Administrative Agent shall reasonably request;
(eh) The the Administrative Agent shall have received a certificate of a Responsible Officer of all fees payable to the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect and the Additional Lender that the Borrower has agreed to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. pay in connection with this Increase and Amendment Agreement; and
(i) to the preparation, negotiation and execution of this Amendment or otherwise extent required to be paid in connection with this Amendmentby the Borrower pursuant to Section 10.13 of the Credit Agreement, the Administrative Agent (or its counsel) shall have received, to the extent invoiced at least one no later than two Business Day Days prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) firstSecond Amendment Effective Date, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.payment
Appears in 1 contract
Sources: Credit Agreement (Transocean Ltd.)
Conditions to Effectiveness. This Amendment shall become be effective only as of August 26, 1996, upon receipt by the satisfaction or waiver in accordance with Section 10.01 Agent and the Banks of the Existing Credit Agreement of following, in form and substance satisfactory to the following conditions (Agent and the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):Banks:
(a) The Administrative Agent shall have received a this Amendment duly executed counterpart signature page of this Amendment and delivered by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages heretoBorrowers, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 LoansParent, the Administrative Agent Banks and the Collateral Agent.;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement amended and restated Revolving Credit Notes payable to the order of such Term B-5 Lender duly executed and delivered by each of the Borrower Borrowers in substantially favor of each Bank, in the form of Annex Exhibit A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.hereto and completed with appropriate insertions;
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as Affirmation Agreement in respect of the Amendment Effective Date Parent Guaranty, the HOS Guaranty, the HOS Security Agreement, and reasonably satisfactory to the Administrative Security Agreement, executed by the Borrowers, HOS, the Parent and the Agent.;
(d) Each an Amendment fee in the amount of $12,500 payable to the Agent for the pro-rata accounts of the conditions set forth in Section 4.02 Banks;
(i) amendments to each of the Amended Vessel Mortgages, duly executed and Restated Credit Agreement delivered by Marine Assets or HOS, as appropriate, and the Agent and (ii) evidence of the filing and recordation (in the form of a Certificate of Ownership and Encumbrance acceptable to the Agent and the Banks) of such amendments with the U.S. Coast Guard (in the case of the U.S. Vessel Mortgage and the HOS Vessel Mortgage) or the Office of the Deputy Commissioner of Maritime Affairs for The Republic of Vanuatu (in the case of the Vanuatu Vessel Mortgage); provided that, with respect to the amendments to each of the U.S. Vessel Mortgage and the HOS Vessel Mortgage only, the requirements of this Section 5(e) shall be deemed satisfied as if the Borrowers shall provide the Banks and the Agent with such evidence of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer filing and recordation of the Borroweramendments to the U.S. Vessel Mortgage and the HOS Vessel Mortgage no later than September 6, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.1996;
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect legal opinion, addressed to each Mortgaged Propertythe Banks and the Agent, dated the date hereof, in form and substance satisfactory to the Banks and the Agent, from Jones, Walker, Waechter, Poitevent, Carrerre & Denegre, L.L.P., counse▇ ▇▇ ▇▇e Parent, the Borrowers, and HOS;
(g) The Borrower shall evidence satisfactory to the Banks and the Agent that all requisite corporate approval of the transactions contemplated hereby have paid all reasonable fees and out-of-pocket expenses (been obtained, including the reasonable legal fees and expenses without limitation delivery of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred copies, certified by the Administrative Agentsecretary of each of the Borrowers, ▇▇▇▇▇ Fargo SecuritiesHOS and the Parent, LLC and Deutsche Bank Securities Inc. in connection with of votes of such Person's respective board of directors authorizing the preparationtransactions contemplated hereby, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.and
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (any other document or instrument the “New Senior Notes”) Agent and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans)Banks may reasonably request.
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Trico Marine Services Inc)
Conditions to Effectiveness. This Amendment Agreement shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement date (the “Effective Date”) that each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):shall have occurred:
(a) The Administrative Agent All Parties shall have received a duly executed a counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.Agreement;
(b) Each Term Lender executing PREPA shall have executed agreements (the “Citibank/Scotiabank Forbearance Agreements”) in form and substance acceptable to the Forbearing Creditors with Citibank, N.A. (“Citibank”), as lender under that certain Trade Finance Facility Agreement, dated as of July 20, 2012 (as amended, restated, extended, supplemented or otherwise modified and in effect from time to time, the “Citibank Credit Agreement”) and Scotiabank de Puerto Rico (“Scotiabank”), as agent, and the requisite threshold of other lenders (together with Scotiabank, the “Scotiabank Lenders”) that are parties to that certain Credit Agreement, dated as of May 4, 2012 (as amended, restated, extended, supplemented or otherwise modified and in effect from time to time) (the “Scotiabank Credit Agreement,” and together with the Citibank Credit Agreement, and any related documents to each, the “Citibank/Scotiabank Lines of Credit”); For the avoidance of doubt, nothing in this Amendment Agreement or in the Citibank/Scotiabank Forbearance Agreements shall prejudice any of the Forbearing Creditors’, Citibank’s or the Scotiabank Lenders’ right to contest or defend, formally or informally, the priority of repayments of the Citibank/Scotiabank Lines of Credit relative to the Bonds. Notwithstanding the foregoing or anything herein to the contrary, the Forbearing Creditors and PREPA agree not to take any position, whether formally or informally, regarding the priority of repayments of the Citibank/Scotiabank Lines of Credit relative to the Bonds on the basis of (x) any of the following actions or agreements by Citibank and the Scotiabank Lenders on the Effective Date and during the Forbearance Period: (i) forbearing, delaying or failing to exercise remedies, (ii) agreeing to a postponement or delay in payment of interest or principal, (iii) granting an extension of any maturity date, (iv) not requiring the repayment or readvance of any loans under the Citibank/Scotiabank Lines of Credit or not requiring any loans under the Citibank/Scotiabank Lines of Credit to be revolving loans or (y) the inclusion in this Agreement as a Potential Default, and the inclusion in the Trust Agreement (as amended by the Amendment), as a “Term B-5 LenderPotential Default” shall have received(as defined in the Trust Agreement, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed as amended by the Borrower Amendment) of PREPA’s use of monies from the General Fund to service its debt under the Citibank/Scotiabank Lines of Credit, and none of the Forbearing Creditors or PREPA shall (or direct the Trustee to) use any such actions as a basis for contesting whether any expense, claim, liability or amount shall be construed as a Current Expense under the Trust Agreement by virtue of the foregoing or use any such actions in substantially making any argument, filing any pleading or complaint, or supporting any other person in doing the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Datesame.
(c) The Administrative Agent PREPA shall have received such opinions as may reasonably be requested by it, including executed an opinion of Ropes & ▇▇▇▇ LLP, New York counsel agreement (the “GDB Forbearance Agreement”) in form and substance acceptable to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.Forbearing Creditors with Government Development Bank for Puerto Rico (“GDB”);
(d) Each No proceeding pursuant to the Recovery Act or any other action or proceeding that seeks to adjust the claims of the conditions set forth in Section 4.02 its creditors pursuant to any federal, state, or Puerto Rico statute, now or hereinafter enacted, has been instituted by or on behalf of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.PREPA;
(e) The Administrative Agent PREPA shall have received a certificate of a Responsible Officer of provided an initial 13-week cash flow statement (the Borrower, certifying “Initial 13-Week Cash Flow Statement”) to the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.Forbearing Creditors; and
(f) The Administrative Agent PREPA shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect and provided written confirmation to each Mortgaged Property;
all Forbearing Creditors of all approvals required to enter into and perform this Agreement, including, without limitation, submission to the Forbearing Creditors of (gA) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPresolution(s) incurred duly adopted by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC board of directors of PREPA authorizing PREPA to enter into and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of perform this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.Agreement and
Appears in 1 contract
Sources: Forbearance Agreement
Conditions to Effectiveness. This Amendment shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement first date when each of the following conditions precedent have been satisfied (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(a) The the Administrative Agent shall have received a (i) this Amendment, duly executed counterpart signature page of this Amendment and delivered by the Borrower, each the Issuers, the Swing Loan Lender and the Administrative Agent, (ii) (A) New Revolving Credit Lender Addenda (if any), in the form attached hereto as Annex A (the “New Revolving Credit Lender Addendum”), duly executed and delivered by new Lenders whose aggregate Amendment No. 5 Incremental Commitments, together with the Amendment No. 5 Incremental Commitments of certain Consenting Lenders under clause (ii)(B) below, are equal to $400 million (such that the Lenders holding 100% of the Borrower’s subsidiaries listed on pro forma aggregate Amendment No. 5 Incremental Commitments shall have consented to the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount terms of Term B-2 Loans, the Administrative Agent this Amendment and the Collateral Agent.extension of the Amendment No. 5 Incremental Period) and (B) Consenting Revolving Credit Lender Consents, in the form attached hereto as Annex B (the “Consenting Revolving Credit Lender Consents”), duly executed and delivered by all of the existing Lenders (the “Consenting Lenders”), and (iii) a Reaffirmation Agreement, in the form attached hereto as Annex C, duly executed and delivered by the Borrower and each Guarantor;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such legal opinions with respect to each Loan Party, dated as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel Amendment Effective Date and addressed to the Administrative Agent, the Lenders and the Issuers, in form and substance reasonably acceptable to the Administrative Agent;
(c) the Administrative Agent shall have received (i) a copy of a certificate from the Secretary of State or other applicable office in the jurisdiction of incorporation or organization of each Loan PartiesParty attesting to the good standing (or equivalent) of such Loan Party (where such concept is applicable) and (ii) a certificate from the Secretary or Assistant Secretary of each Loan Party, each dated as of the Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent.
, certifying (dA) Each the names and true signatures of each officer of such Loan Party that has been authorized to execute and deliver the conditions set forth Amendment and any other document required to be delivered by or on behalf of such Loan Party, (B) the articles of incorporation or other equivalent Constituent Document of such Loan Party as in Section 4.02 effect on the date of such certification (or, alternatively, certifying that there have been no amendments or other modifications made to such Constituent Document since September 12, 2019), (C) the Amended bylaws or other equivalent Constituent Document of such Loan Party as in effect on the date of such certification (or, alternatively, certifying that there have been no amendments or other modifications made to such Constituent Document since September 12, 2019) and Restated Credit Agreement shall (D) resolutions of such Loan Party’s Board of Directors, sole member, managing member, general partner, or other approving body, as applicable, authorizing the execution, delivery and performance of this Amendment and any other document required to be satisfied delivered by, or on behalf of, such Loan Party, in each case as of the Amendment Effective Date.;
(d) all fees and expenses (including, to the extent invoiced and delivered to the Borrower at least two Business Days prior to the Amendment Effective Date, or such later date as may be agreed by the Borrower in its reasonable discretion, the reasonable and documented fees and expenses of Weil, Gotshal & ▇▇▇▇▇▇ LLP) payable in connection with this Amendment or otherwise required to be paid pursuant to the Existing Credit Agreement shall have been paid in full;
(e) The [Reserved];
(f) the Borrower shall have paid to the Administrative Agent, for the ratable benefit of each Lender that, either by executing a Consenting Revolving Credit Lender Consent or a New Revolving Credit Lender Addendum, will hold, Amendment No. 5 Incremental Commitments immediately after giving effect to the Amendment Effective Date, a closing fee in an amount equal to 0.10% of the aggregate amount of such Lender’s Amendment No. 5 Incremental Commitments on the Amendment Effective Date (outstanding immediately after giving effect to Amendment Effective Date);
(g) the Borrower shall have delivered the Borrowing Base Certificate required to be delivered pursuant to Section 6.9(a) of the Existing Credit Agreement, giving effect to this Amendment, for the month ended February 28, 2021 and after giving effect to any Loans or Letters of Credit requested to be made or Issued on the Amendment Effective Date and the use of proceeds thereof, the Revolving Credit Outstandings shall not exceed the Maximum Credit at such time;
(h) each of the representations and warranties set forth in Section 5 hereof shall be true and correct as of the Amendment Effective Date;
(i) no Default or Event of Default shall have occurred and be continuing as of the Amendment Effective Date; and
(j) the Administrative Agent shall have received a certificate of from a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a3(h) and (b3(i) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This The amendments provided for in this Amendment shall become effective only take effect as of the date of Second Amendment Effective Date (as defined above) upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):precedent:
(a) The the Administrative Agent shall have received a duly executed counterpart signature page of to this Amendment Amendment, duly executed and delivered by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages heretoBorrowers, the Required Guarantors, the Lenders, Term B-2 Lenders holding each new financial institution which has agreed to join the Credit Agreement as a majority in principal amount of Term B-2 Loans, Lender (the “Acceding Lenders”) and the Administrative Agent Agent, and the Collateral Agent.this Amendment shall be in full force and effect;
(b) Each Term Lender executing this the Administrative Agent shall have received an Instrument of Accession substantially in the form of Annex C attached hereto duly executed by each of the Acceding Lenders, if any, the Borrowers and the Administrative Agent;
(c) the Administrative Agent shall have received an updated Exhibit D to the Credit Agreement (attached hereto as Annex A);
(d) the Administrative Agent shall have received an updated Schedule 1 to the Credit Agreement (attached hereto as Annex B);
(e) the Administrative Agent shall have received the following Schedules to the Credit Agreement, updated as of the Second Amendment as a “Term B-5 Lender” Effective Date: Schedule 7.7 (Litigation), Schedule 7.15 (Certain Transactions), Schedule 7.19(a) (Subsidiaries), Schedule 7.19(b) (Joint Ventures), Schedule 7.20 (Bank Accounts), Schedule 9.1 (Existing Indebtedness), Schedule 9.2 (Existing Liens) and Schedule 9.3 (Existing Investments);
(f) the Administrative Agent shall have received, if requested by itthe relevant Acceding Lender, one or more replacement Notes a new Revolving Credit Note payable to the order of such Term B-5 each Acceding Lender duly executed by each of the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.Borrowers;
(cg) The the Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion updated Perfection Certificate for each of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each ;
(h) the Administrative Agent shall have received any necessary amendments and/or revisions to the Barbados Security Documents which are required pursuant to the transactions contemplated by this Amendment;
(i) execution and delivery of that certain letter agreement dated as of August 3, 2010 (the “Amendment Effective Date Fee Letter”), by and reasonably satisfactory to among the Administrative Agent., Banc of America Securities LLC, and the Borrowers;
(dj) Each the Borrowers shall have paid the Administrative Agent, for the account of the conditions set forth Lenders (as defined in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as Amendment Fee Letter), that portion of the Amendment Fees (as defined in the Amendment Fee Letter) due on the Second Amendment Effective Date.;
(ek) The the Administrative Agent shall have received a certificate of a Responsible Officer the authorized officer of each Borrower and each Guarantor dated the Second Amendment Effective Date certifying as to (i) no amendments, modifications or supplements to the Governing Documents of any Borrower or Guarantor since the last delivery of such Governing Documents by such Loan Party to the Administrative Agent and that such Governing Documents are in full force and effect or attaching complete and certified copies of such Governing Documents including any amendments, modifications or supplements thereto (including certifications of such Governing Documents by the appropriate Governmental Authority of such Person’s jurisdiction of formation or organization), (ii) all corporate or other organizational actions taken by each of the BorrowerBorrowers and Guarantors authorizing the execution, certifying delivery, and performance of this Amendment and the conditions precedent set forth in Sections 4.02(a) other Amendment Documents and attaching copies of the board minutes and/or resolutions relating to such authorization and (biii) the names, titles, incumbency, and specimen signatures of the Amended and Restated Credit Agreement shall have been satisfied on and as authorized officers of each of the Borrowers and the Guarantors authorized to sign this Amendment Effective Date.and the other Amendment Documents on behalf of such Person;
(fl) The the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect favorable legal opinion addressed to each Mortgaged Property;
the Lenders and the Administrative Agent, dated as of the Second Amendment Effective Date, in form and substance satisfactory to the Lenders and the Administrative Agent, from (ga) The Borrower shall have paid all reasonable fees ▇▇▇▇▇▇▇ Coie LLP, counsel to the Borrowers and out-of-pocket expenses their Subsidiaries, (including the reasonable legal fees and expenses of b) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Barbados counsel to CAI Barbados and (c) incurred if required by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, any other relevant local counsel to the extent invoiced at least one Business Day prior to Borrowers and their Subsidiaries;
(m) a Borrowing Base Report, dated as of the date hereof., executed by the Borrowers;
(hn) The Borrower there shall not have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
occurred (i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and a Material Adverse Effect since December 31, 2009 or (ii) a material adverse change in the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by facts and information regarding the Amended Borrowers and Restated Credit Agreement, Guarantors represented to date to the combined principal amount of Administrative Agent and the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.Lenders;
(jo) The the absence of any event or occurrence of whatever nature (including any adverse determination in any litigation, arbitration or governmental investigation or proceeding) that could have a Material Adverse Effect;
(p) the Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (such certificates, lien search results and other than a Defaulting Lender) that has returned an executed signature page to this Amendment to documents as the Administrative Agent at shall reasonably require;
(q) the Administrative Agent shall have received, in form and substance reasonably satisfactory to it, all such reports, audits or certifications as it may reasonably request; and
(r) the Borrowers shall have paid to the Lenders or the Administrative Agent, as appropriate, any and all fees due on or prior to 12:00 p.m.the Second Amendment Effective Date, New York City time on September 24together with the reasonable fees, 2010 (the “Consent Deadline” expenses and each such Lender, a “Consenting Lender”).
(k) Each prepayment disbursements of the Term B-2 Loans pursuant Administrative Agent’s Special Counsel with respect to Section VII(h)(b) shall be allocated which the Borrowers have received invoices on or prior to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit AgreementSecond Amendment Effective Date.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Conditions to Effectiveness. This The amendments set forth in Section 2 of this Amendment and the amendment and restatement of the Existing Notes set forth in Section 3 of this Amendment shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of first date on which the following conditions precedent have been satisfied or waived (the first date of satisfaction or waiver of on which such conditions being referred to herein as shall have been so satisfied or waived, the “First Amendment Effective Date”):
(a) The Administrative Agent Company, Prudential and the Holders shall have received executed and delivered a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral AgentAmendment.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” Prudential shall have received, if requested by it, one or more replacement Notes payable received a fully executed copy of an amendment agreement to the order Existing Credit Facility, dated as of such Term B-5 Lender duly executed April 17, 2020, by and among the Borrower in substantially the form of Annex A heretoCompany, evidencing such Term B-5 Lenders’ Term B-5 LoansJPMorgan Chase Bank, N.A., as extended; provided that such Term B-5 Lender shall have returned administrative agent, and the lenders party thereto, in form and substance satisfactory to the Borrower any Note held by it prior to the Amendment Effective DateRequired Holders.
(c) The Administrative Agent Prudential shall have received such opinions as may reasonably be requested by it, including a fully executed copy of an opinion of Ropes & ▇▇▇▇ LLP, amendment agreement to the New York counsel to the Loan PartiesLife Shelf Agreement, each dated as of the Amendment Effective Date date hereof (the “New York Life Amendment”), by and reasonably among the Company, NYL Investors LLC and the other holders of notes party thereto, in form and substance satisfactory to the Administrative AgentRequired Holders.
(d) Each Prudential shall have received a fully executed copy of an amendment agreement to the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied MetLife Shelf Agreement, dated as of the Amendment Effective Datedate hereof (the “MetLife Amendment”), by and among the Company, Metropolitan Life Insurance Company and MetLife Investment Advisors Company, LLC and the other holders of notes party thereto, in form and substance satisfactory to the Required Holders.
(e) The Administrative Agent Prudential and the Holders shall have received a certificate of signed by a Responsible Officer of the Borrower, Company certifying that the conditions precedent set forth specified in Sections 4.02(aclauses (f) and (bg) of the Amended and Restated Credit Agreement shall have this Section 5 has been satisfied on and as of the First Amendment Effective Date.
(f) The Administrative Agent Each of the representations and warranties set forth in Section 4 above shall be true and correct in all material respects on and as of the First Amendment Effective Date as if made on and as of such date (or, if any such representation and warranty is expressly stated to have been made as of a specific date, as of such specific date).
(g) No Default or Event of Default shall have occurred and be continuing on and as of the First Amendment Effective Date or immediately after giving effect to this Amendment.
(h) Prudential and the Holders shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect certificate from the Secretary of the Company, in form and substance satisfactory to each Mortgaged Property;
the Holders, dated as of the date hereof (gi) The Borrower shall have paid all reasonable fees attaching and out-of-pocket expenses (including certifying as to copies of corporate resolutions of the reasonable legal fees Company relating to the authorization, execution and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agentdelivery, ▇▇▇▇▇ Fargo Securitiesas applicable, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required and any other documents to be paid entered into in connection with this Amendmentherewith, (ii) attaching and certifying as to copies of its organizational documents as then in effect and (iii) certifying as to the extent invoiced at least one Business Day prior signatures and incumbency of relevant officers of the Company executing this Amendment and any other documents to be entered into in connection herewith.
(i) Prudential and the Holders shall have received a good standing certificate for the Company from the Secretary of State of Delaware, dated as of a recent date, and such other evidence of the status of the Company as Prudential and the Holders may reasonably request.
(j) Each Holder shall have received payment of an amendment fee of 10 basis points (0.10%) of the principal amount of the Notes held by such Holder outstanding on the date hereof.
(hk) The Borrower Company shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (paid the “New Senior Notes”) reasonable fees and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds disbursements of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basisHolders’ special counsel in accordance with Section 7 below.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Multicurrency Private Shelf Agreement (Henry Schein Inc)
Conditions to Effectiveness. This The effectiveness of this Amendment shall become effective only upon and the satisfaction or waiver in accordance with Section 10.01 obligation of each Lender hereunder to fund the Loans as contemplated herein as of the Existing Credit Agreement first date (such date being referred to as the “Amendment No. 5 Effective Date”, which date is April 29, 2016) shall be subject solely to satisfaction (or waiver) of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):precedent:
(a) The Administrative Agent shall have received a this Amendment, duly executed counterpart signature page of this Amendment and delivered by (A) the Borrower, each of (B) the Borrower’s subsidiaries listed on Guarantors, (C) the signature pages hereto, the Required Cashless Option Term A-2 Lenders, (D) the Revolving Credit Lenders electing to roll over their Revolving Credit Commitments into Tranche A-2 Revolving Commitments, (E) the Additional Term B-2 Lenders holding a majority in principal amount of A-3 Lender (if any), (F) the Additional Revolving Lender), (G) the Incremental Tranche A-2 Revolving Lenders, (H) the Incremental Term B-2 LoansA-3 Lenders, (I) the Administrative Agent Agent, (J) the L/C Issuer, (K) Swing Line Lender and (L) the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” The Administrative Agent shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it received a Committed Loan Notice prior to the requested date of the Amendment No. 5 Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by itreceived, including on behalf of itself, the Collateral Agent, the L/C Issuer and the Lenders, an opinion of Ropes from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, New York special counsel to the Loan PartiesBorrower, each dated as of the Amendment No. 5 Effective Date and addressed to the Administrative Agent, the Collateral Agent, the L/C Issuer and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received (i) certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, each Target and any subsidiaries of a certificate Target that would be required to become Guarantors pursuant to the terms of the Credit Agreement (such subsidiaries, together with the Targets, the “Target Guarantors”), certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and each Target Guarantor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and (ii) a certificate, dated as of the Amendment No. 5 Effective Date, signed by a Responsible Officer of the Borrower, certifying (A) confirming satisfaction of the conditions precedent set forth in Sections 4.02(a3(k), (l) and (bo), (B) certifying that the Borrower is in compliance with the requirements set forth in Section 2.14(a)(z) of the Amended Credit Agreement after giving effect to the incurrence of the Incremental Term A-3 Loans and Restated the Incremental Tranche A-2 Revolving Commitments and (C) certifying that the Borrower is Solvent after giving effect to the Acquisition Transaction and the financing thereof.
(e) Payment of all reasonable fees and expenses due to the Administrative Agent and the Amendment No. 5 Arrangers, in each case required to be paid on the Amendment No. 5 Effective Date, to the extent invoiced at least three business days prior to the Amendment No. 5 Effective Date (or such later date as Borrower shall reasonably agree). Substantially simultaneously with effectiveness, (i) the Term A-2 Lenders (including all Cashless Option Term A-2 Lenders but excluding the Additional Term A-3 Lender (if any) in its capacity as such) under the existing Credit Agreement shall have been satisfied paid (other than the principal amount of Rollover Refinancing Term A-3 Loans) all accrued principal and interest on and as of their Term A-2 Loans to, but not including, the Amendment No. 5 Effective Date and (ii) the Revolving Credit Lenders under the existing Credit Agreement shall have been paid all accrued fees on their Revolving Credit Commitments to, but not including, the Amendment No. 5 Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect Note executed by the Borrower for each Lender that requests such a Note at least two Business Days prior to each Mortgaged Property;the Amendment No. 5 Effective Date.
(g) The Borrower Administrative Agent shall have paid all reasonable received, for the account of:
(i) Additional Term A-3 Lenders (if any), upfront fees in an amount equal to 0.25% of their respective Additional Term A-3 Commitment (as defined in the Amended Credit Agreement)
(ii) Cashless Option Term A-2 Lenders providing Rollover Refinancing Term A-3 Loans, amendment fees in an amount equal to 0.05% of the portion of the final allocated commitment of each Cashless Option Term A-2 Lender that constitute Rollover Refinancing Term A-3 Loans,
(iii) Incremental Term A-3 Lenders providing Incremental Term A-3 Loans, upfront fees in an amount equal to 0.25% of the final allocated commitment of each Lender holding Incremental Term A-3 Loans, immediately after giving effect to Amendment No. 5,
(iv) (y) Incremental Tranche A-2 Revolving Lenders providing Incremental Tranche A-2 Revolving Commitments and out-of-pocket expenses (including x) Additional Revolving Lenders (if any) providing Additional Tranche A-2 Revolving Commitments, upfront fees in an amount equal to 0.25% of the reasonable legal final allocated commitment of each Lender holding Incremental Tranche A-2 Revolving Commitments and/or Additional Tranche A-2 Revolving Commitments, immediately after giving effect to Amendment No. 5, and
(v) Consenting Revolving Lenders providing Rollover Tranche A-2 Revolving Commitments, amendment fees and expenses in an amount equal to 0.05% of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with portion of the preparation, negotiation and execution final allocated commitment of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofeach Consenting Revolving Lender that constitute Rollover Tranche A-2 Revolving Commitments.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans)[Reserved].
(i) After giving effect to (i) The Administrative Agent shall have received Uniform Commercial Code financing statements identifying the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans Target Guarantors as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basisdebtors.
(j) The Administrative Agent and the Amendment No. 5 Arrangers shall have received from at least 3 business days prior to the Borrower any fees required in connection with this Amendment in Dollars for No. 5 Effective Date all documentation and other information about the account Borrower, each Target, the Guarantors and the subsidiaries of each Lender (other than a Defaulting Lender) Target that would be required to be Guarantors under the Credit Agreement as has returned an executed signature page been reasonably requested in writing at least 7 business days prior to this the Amendment to No. 5 Effective Date by the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the Amendment No. 5 Arrangers that they reasonably determine is required by regulatory authorities under applicable “Consent Deadlineknow your customer” and each such Lenderanti-money laundering rules and regulations, a “Consenting Lender”)including without limitation the PATRIOT Act.
(k) Each prepayment The Acquisition shall have been consummated, or substantially simultaneously with the borrowing hereunder, shall be consummated, in all material respects in accordance with the terms of the Term B-2 Loans pursuant Acquisition Agreement, without giving effect to Section VII(h)(b) shall be allocated any amendments, consents or waivers by Borrower or any of its subsidiaries to the Borrower for purposes of Section 2.05(a)(i) Acquisition Agreement following April 4, 2016 that are materially adverse to the Lenders or the Amendment No. 5 Arrangers without the prior consent of the Amended Amendment No. 5 Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (a) any reduction in the purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of the Lenders or the Amendment No. 5 Arrangers if (A) such reduction comprises less than 10% of such purchase price or consideration and Restated Credit Agreement.(B) if immediately preceding clause (A) does not apply, the commitments for the Incremental Term A-3 Loans hereunder are reduced by the amount of such reduction above 10%, (b) any increase in the purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of the Lenders or the Amendment
Appears in 1 contract
Sources: Credit Agreement (CEB Inc.)
Conditions to Effectiveness. This Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective only upon effective, and Borrowers shall have no rights under this Amendment, until the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(a) The Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the following:
(a) duly executed signature pages hereto, to this Amendment from the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 LoansBorrowers, the Administrative Agent and the Collateral Agent.each Loan Party;
(b) Each Term Lender executing this a fully executed copy of the Fourth Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by Senior Subordinated Note Purchase Agreement and the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned Fourth Amendment to the Borrower any Note held by it prior to Junior Subordinated Securities Purchase Agreement, in each case which shall be in full force and effect on the Amendment Effective Date.
(c) The Administrative Agent date hereof and shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date in form and substance reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(gc) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses payment in full in cash of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of an amendment fee payable to each Lender executing this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal it becomes effective in an amount equal to 50 basis points of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined outstanding principal amount of the Term B-2 Loan held by such Lender as of the date hereof plus (ii) such Lender’s Pro Rata Share of the Revolving Credit Commitments as of the date hereof (the “Senior Amendment Fee”); provided, however, if a fee in excess of the Senior Amendment Fee (as a percentage of (i) the outstanding principal amount of the Term Loan as of the date hereof plus (ii) the Revolving Credit Commitments as of the date hereof) shall become due and payable in connection with (x) the obligations outstanding under the Senior Subordinated Note Purchase Agreement on the Second Amendment Effective Date, (y) the Fourth Amendment to the Senior Subordinated Note Purchase Agreement, including the issuance of Second Lien Bridge Loans (excluding, for the avoidance of doubt, prepayment premium or other such contingent or delayed obligations and Incremental Term B-3 Loans outstanding would not the “Additional Second Lien Amendment Fee” (as such term is defined in the Fourth Amendment to the Senior Subordinated Note Purchase Agreement) in an amount equal to $125,000 payable with respect to the Second Lien Bridge Loans) or the Fourth Amendment to the Junior Subordinated Securities Purchase Agreement (the “Subordinated Amendment Fee”), then the Senior Amendment Fee shall automatically be greater than $500.0 million on a pro forma basis.increased to the amount by which such Subordinated Amendment Fee exceeds the Senior Amendment Fee;
(jd) The Administrative Agent evidence that TPR shall have received a binding commitment for up to $5,000,000 in cash proceeds (net of any original issue discount, if any) from the Borrower any fees required in connection Second Lien Bridge Loans, together with this Amendment in Dollars for the account delivery of each Lender (other than a Defaulting Lender) that has returned executed copies of an executed signature page to this Amendment amendment to the Administrative Agent at or prior Senior Subordination Agreement, in each case in form and substance satisfactory to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).Required Lenders:
(ke) Each prepayment duly executed copy of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated NLC Settlement, in form and substance satisfactory to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.Required Lenders; and
Appears in 1 contract
Conditions to Effectiveness. This Amendment Master Assignment ---------------------------- Agreement shall become be effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement of Master Assignment Date when the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):precedent are satisfied:
(a) The Administrative Agent shall have received a duly executed counterpart signature page counterparts of this Amendment by Master Assignment Agreement that, when taken together, bear the signatures of the US Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Increasing Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral AgentDecreasing Term Lenders that are not Departing Lenders.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 duly executed counterparts of the Amended and Restated Credit Agreement that, when taken together, bear the signatures of Holdings, the Borrowers, the Required Lenders and each Term Lender (after giving effect to the assignments of the Assigned Interests pursuant to Section 5 hereof), and the Amended and Restated Credit Agreement shall be satisfied have become effective simultaneously with or immediately after the assignment of the Assigned Interests hereunder on the Master Assignment Date.
(c) Prior to or simultaneously with the assignment of the Assigned Interests hereunder on the Master Assignment Date, pursuant to Section 7.04(p) of the Existing Credit Agreement as amended and restated by the Amendment, the US Borrower shall have (a) issued at least $75,000,000 in aggregate principal amount of Additional Senior Subordinated Notes for gross cash proceeds (prior to deduction of underwriting discounts and commissions) of at least $75,000,000 and (b) used $74,437,500 of Net Cash Proceeds from the issuance of such Additional Senior Subordinated Notes to prepay the Term Loans (together, the "Permitted Transactions"). ----------------------
(i) The representations and warranties of each Credit Party set forth in the Credit Documents shall have been true and correct in all material respects on and as of the Amendment Effective Master Assignment Date with the same effect as though made on and as of the Master Assignment Date, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been, to such extent, true and correct in all material respects as of such earlier date and (ii) at the time of and immediately after giving effect to the transactions contemplated by this Master Assignment Agreement, no Default or Event of Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate, dated the Master Assignment Date and signed by an Authorized Officer of the US Borrower, to the effect of clauses (i) and (ii) of this sentence.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrowerall reasonable fees and expenses required to be paid or reimbursed by any Credit Party under or in connection with this Master Assignment Agreement, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on or any other Credit Document and as (in the case of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid reimbursed, including reasonable fees, charges and disbursements of counsel) invoiced in connection with this Amendment, writing to the extent invoiced at least one Business Day any Credit Party on or prior to the date hereofMaster Assignment Date.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Master Assignment Agreement (Compass Minerals Group Inc)
Conditions to Effectiveness. This Amendment shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of date (the Existing Credit Agreement of "Amendment Effective Date") on which the following conditions (the date of satisfaction precedent have been satisfied or waiver of such conditions being referred to herein as the “Amendment Effective Date”):waived in writing:
(a) The Administrative Agent Company and the Lender shall have received a duly each executed counterpart signature page of and delivered this Amendment by to the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral AgentLender.
(b) Each Term The Lender executing this Amendment as a “Term B-5 Lender” shall have receivedreceived a Reaffirmation of Subordinate Mortgage, if requested by itSecurity Agreement, one or more replacement Notes payable to the order Assignment of such Term B-5 Lender duly executed by the Borrower Rents and Fixture Filing, in substantially the form of Annex Exhibit A attached hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to duly executed and delivered by the Borrower any Note held by it prior to the Amendment Effective DateCompany.
(c) The Administrative Agent Lender shall have received such opinions as may reasonably be requested an ALTA Statement, in the form used by itChicago Title Insurance Company, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel duly executed and delivered by the Company with respect to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agentits Peoria facility.
(d) Each The Lender shall have received a fully executed copy of the conditions set forth in Section 4.02 of the an Amended and Restated Credit Subordination and Intercreditor Agreement by and among the Company, the Lender and Wachovia Capital Finance Corporation (Central), in the form of Exhibit B attached hereto.
(e) The Lender shall be satisfied have received a certification from the Company, in the form of Exhibit C attached hereto, that the Company has fully complied with the Capital Expenditure Requirement.
(f) The Lender shall have received a certificate of the Secretary of the Company with certified copies of the following: (i) its Amended and Restated Certificate of Incorporation, as in effect with the State of Delaware, (ii) its By-Laws, (iii) resolutions of its Board of Directors authorizing the execution, delivery and performance by the Company of this Amendment, and (iv) the names of the officer or officers of the Company authorized to sign this Amendment and other documents, together with a sample signature of such officer(s) on which the Lender may conclusively rely on each such certificate until formally advised by a like certificate of any changes therein.
(g) The Lender shall have certificate of good standing and foreign qualification for the Company from the Secretary of States of Delaware and Illinois each dated within ten (10) days of the Amendment Effective Date.
(eh) The Administrative Agent Lender shall have received a certificate of a Responsible Officer of such other certificates, financial statements, schedules, resolutions, and other documents which are provided for hereunder or which the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement Lender shall have been satisfied on and as of the Amendment Effective Datereasonably require.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Loan Agreement (Keystone Consolidated Industries Inc)
Conditions to Effectiveness. This Second Amendment shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions date (the date of satisfaction or waiver of such conditions being referred to herein as the “Second Amendment Effective Date”):) on which the following conditions shall have been satisfied or waived:
(a) The the Administrative Agent shall have received (i) this Second Amendment, executed and delivered by each Borrower and (ii) a duly Lender Joinder Agreement with respect to the Incremental Facility Increase contemplated hereby, executed counterpart signature page of this Amendment and delivered by the Borrower, each of Additional Lender (the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.“Second Amendment Lender Joinder Agreement”);
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate from the Parent Borrower, dated as of the Second Amendment Effective Date, substantially in the form of Exhibit G-1 to the Credit Agreement, with appropriate insertions and attachments of resolutions or other actions, evidence of incumbency and the signature of authorized signatories and Organizational Documents, executed by a Responsible Officer and the Secretary or any Assistant Secretary or other authorized representative of the Parent Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.;
(fc) The the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(gi) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable executed legal fees and expenses opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Debevoise & P▇▇▇▇▇▇▇ LLP) incurred by , counsel to the Parent Borrower, in form and substance reasonably satisfactory to the Administrative AgentAgent and (ii) the executed legal opinion of Morris, Nichols, Arsht & T▇▇▇▇▇▇ Fargo SecuritiesLLP, LLC special Delaware counsel to certain of the Loan Parties, in form and Deutsche Bank Securities Inc. in connection with substance reasonably satisfactory to the preparationAdministrative Agent;
(d) the Borrowers shall have paid, negotiation and execution of this Amendment or otherwise required caused to be paid in connection with this Amendmentpaid, to the extent invoiced at least one Business Day prior Additional Lender the agreed upfront fees payable by the Borrowers to the date hereof.Additional Lender pursuant to the Second Amendment Lender Joinder Agreement to the extent due;
(he) The Borrower the Specified Representations shall have issued at least $500.0 million aggregate principal amount be true and correct in all material respects, except to the extent they relate to a particular date in which case such Specified Representations shall be true and correct in all material respects on and as of senior unsecured notes (the “New Senior Notes”) such date as if made on and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment as of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).such date; and
(i) After giving effect to (if) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower any fees required Parent Borrower, dated as of the Second Amendment Effective Date, substantially in connection with this Amendment in Dollars for the account form of each Exhibit H to the Credit Agreement. The making available of the Incremental Facility Increase contemplated hereby by the Additional Lender (other than a Defaulting Lender) that has returned shall conclusively be deemed to constitute an executed signature page to this Amendment to acknowledgement by the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (and the “Consent Deadline” and Additional Lender that each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to conditions precedent set forth in this Section VII(h)(b) 2 shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreementhave been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person.
Appears in 1 contract
Conditions to Effectiveness. This Amendment Agreement shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as to, and binding upon, each of the Existing Credit Agreement undersigned Parties on the date and at the time upon which all of the following conditions have been satisfied in accordance with this Agreement (the date of satisfaction or waiver of such conditions being referred to herein as date, the “Amendment Agreement Effective Date”):
(a) The Administrative Agent counsel to the Company shall have received a duly executed counterpart signature page of counterparts to this Amendment Agreement by the Borrower, each of (i) the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders PE Sponsors and (ii) Initial Consenting Noteholders holding a majority at least 80% in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.Senior Notes/ALOC Claims;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable counsel to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent Initial Consenting Noteholders shall have received such opinions as may reasonably be requested executed counterparts to this Agreement by it, including an opinion each of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes Debtors and (ii) the conversion PE Sponsors; and
(c) counsel to the PE Sponsors shall have received executed counterparts to this Agreement by each of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by (i) the Amended Debtors and Restated Credit Agreement, the combined (ii) Initial Consenting Noteholders holding at least 80% in principal amount of the Term B-2 Loans Senior Notes/ALOC Claims. Notwithstanding the occurrence of the Agreement Effective Date, this Agreement contemplates that (i) the Committee may become a Party upon execution and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from delivery of the Borrower any fees required in connection with this Amendment in Dollars for Committee Joinder to counsel to each of the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent Parties and at or prior to 12:00 p.m., New York City such time on September 24, 2010 (the “Consent Deadline” Committee Effective Date”) the Committee shall become obligated under this Agreement, and (ii) one or more Additional Consenting Noteholders or Consenting Claimholders may become Parties upon execution and delivery of counterpart signature pages of this Agreement or the Consenting Claimholder Joinder to counsel to each other Party and at such Lender, time (a “Consenting LenderClaimholder Effective Date”).
) any such Additional Consenting Noteholder or Consenting Claimholder shall become obligated under this Agreement. If (ka) Each prepayment the Committee does not become a Party or there is a subsequent Termination Date (as defined in Section 8 hereof) with respect to the Committee, (1) any and all provisions of this Agreement referencing the Term B-2 Loans pursuant “Committee” are, and shall continue to Section VII(h)(bbe, in full force and effect with respect to the Parties as if such provisions were written without reference to such term and (2) this Agreement shall be allocated in full force and effect with respect to each Party other than the Committee, (b) no Additional Consenting Noteholders become a Party, any and all provisions of this Agreement referencing “Additional Consenting Noteholders” are, and shall continue to be, in full force and effect with respect to the Borrower for purposes Parties as if such provisions were written without reference to such term, or (c) no Consenting Claimholders become a Party or there is a subsequent Termination Date (defined in Section 8) with respect to each Consenting Claimholder, (1) any and all provisions of Section 2.05(a)(ithis Agreement referencing “Consenting Claimholder” are, and shall continue to be, in full force and effect with respect to the Parties as if such provisions were written without reference to such term and (2) of this Agreement shall be in full force and effect with respect to each Party other than the Amended and Restated Credit AgreementConsenting Claimholders.
Appears in 1 contract
Sources: Plan Support Agreement (Hertz Corp)
Conditions to Effectiveness. This Fifth Amendment shall become effective only as of the date set forth above upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (such effective date, the date of satisfaction or waiver of such conditions being referred to herein as the “"Fifth Amendment Effective Date”"):
(a) The there shall exist no Default both immediately before and after giving effect to this Fifth Amendment;
(b) the Administrative Agent shall have received a duly executed counterpart signature page of to this Amendment Fifth Amendment, duly executed and delivered by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each , each Guarantor, the owners of the conditions set forth in Section 4.02 Equity Interests of the Amended and Restated Credit Agreement shall be satisfied as Mission Borrower (the "Mission Pledgors"), the owners of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer Equity Interests of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇▇▇ Borrower (the "▇▇▇▇▇▇▇▇ Pledgors" and collectively with the Mission Pledgors, the "Pledgors"), the Majority Lenders and each of the Term A Lenders and Revolving Credit Lenders;
(c) the Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders, the Swing Line Lender and the L/C Issuers, (i) an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Borrower, the other Nexstar Entities, the Mission Entities and the ▇▇▇▇▇▇▇▇ LLP) incurred by Entities, addressed to the L/C Issuers, the Administrative Agent, the Collateral Agent and the Lenders and permitted to be relied upon by any persons who become Lenders, in each case in form and substance reasonably satisfactory to the Administrative Agent and the Lenders and customary for senior secured credit facilities in transactions of this kind (including a customary no conflicts opinion with respect to the Senior 6⅞% Notes due 2020 and Senior 6⅞% Notes due 2020 Indenture) and (ii) an opinion of ▇▇▇▇▇ ▇▇▇▇, LLP, special FCC counsel for the Nexstar Entities, the Mission Entities and the ▇▇▇▇▇▇▇▇ Entities, addressed to the L/C Issuers, the Administrative Agent, the Collateral Agent, the Swing Line Lender and the Lenders and capable of being relied upon by any persons who become Lenders, in form and substance reasonably satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have received (i) certificates of good standing from the applicable secretary of state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of a 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 Fifth Amendment, and (ii) a certificate of a Responsible Officer of the Borrower attaching the resolutions adopted by the Borrower approving or consenting to the Fifth Amendment;
(e) the representations and warranties set forth in this Fifth Amendment shall be true and correct in all material respects as of the date of this Fifth Amendment (except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date and (2) that any representation or warranty that is qualified by "materiality" or "Material Adverse Effect" shall be true and correct in all respects);
(f) the Mission Credit Agreement shall be amended on a substantially similar basis (but only as applicable) for the Mission Borrower, as the terms set forth in this Fifth Amendment;
(g) the ▇▇▇▇▇▇▇▇ Credit Agreement and each Security Document (as defined in the ▇▇▇▇▇▇▇▇ Credit Agreement) shall be executed, delivered and effective; and
(h) the Administrative Agent shall have received (i) the Nexstar Guaranty of ▇▇▇▇▇▇▇▇ Obligations, (ii) an amended and restated Nexstar Pledge Agreement, (iii) an amended and restated Nexstar Security Agreement, (iv) the ▇▇▇▇▇▇▇▇ Pledge Agreements, (v) the ▇▇▇▇▇▇▇▇ Guaranty of Nexstar Obligations, (vi) the ▇▇▇▇▇▇▇▇ Security Agreement, and (vii) such other amendments and restatements of the Security Documents conforming to the provisions of this Fifth Amendment, as the Collateral Agent and/or the Administrative Agent may require, in each case, duly executed and delivered by each party thereto and effective as of the date thereof;
(i) the Administrative Agent shall have received an amended and restated Revolver Reallocation letter, duly executed by the Revolving Credit Lenders;
(j) the Administrative Agent shall have received the Intercreditor Agreement Among Lenders, duly executed by (a) the Collateral Agent, (b) the Administrative Agent, (c) the Administrative Agent on behalf of the Lenders, (d) the Mission Administrative Agent, (e) the Mission Administrative Agent on behalf of the Mission Lenders, (f) the ▇▇▇▇▇▇▇▇ Administrative Agent and (g) the ▇▇▇▇▇▇▇▇ Administrative Agent on behalf of the ▇▇▇▇▇▇▇▇ Lenders;
(k) the Borrower shall have delivered or caused to be delivered stock certificates of the ▇▇▇▇▇▇▇▇ Borrower and each other ▇▇▇▇▇▇▇▇ Entity that a Domestic Subsidiary of the ▇▇▇▇▇▇▇▇ Borrower and that is required to be pledged pursuant to the Collateral and Guarantee Requirement, together with undated stock powers duly executed in blank;
(l) the Borrower shall have made a prepayment of Term A Loans in an aggregate amount of not less than $60,000,000 and, after taking in account such prepayment, there shall be Term A Loans in the outstanding principal amount of $158,528,128.94;
(m) the Borrower shall have reallocated the aggregate Revolving Credit Commitments of all Revolving Credit Lenders and the aggregate Mission Revolving Credit Commitments of all Mission Revolving Credit Lenders such that the aggregate Revolving Credit Commitments of all Revolving Credit Lenders shall be $95,000,000;
(n) the Administrative Agent shall have received a the Fifth Amendment Administrative Agent Fee Letter, duly executed by the Borrower, the Mission Borrower, the ▇▇▇▇▇▇▇▇ Borrower, the Parent Guarantors and the Administrative Agent;
(o) the Borrower shall have paid all fees and expenses required to be paid prior to or concurrently with the execution of this Fifth Amendment by the Fifth Amendment Administrative Agent Fee Letter and any fee letter executed among the Borrower and any Agent, Arranger or Lender (or combination thereof); and
(p) the Borrower shall have paid all reasonable invoiced fees and expenses of the Administrative Agent's counsel, ▇▇▇▇▇▇▇▇ Fargo SecuritiesPC, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any evidence of payment of all other reasonable and documented out‑of‑pocket costs and expenses (including, without limitation, legal fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lenderand expenses) that has returned an executed signature page to this Amendment have been invoiced prior to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)effective date of this Fifth Amendment.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Third Amendment shall become effective only upon on December 17, 2008 (the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement “Third Amendment Effective Date”), if each of the following conditions (the date of satisfaction precedent shall have been satisfied on or waiver of prior to such conditions being referred to herein as the “Amendment Effective Date”):day:
(a) The Administrative Agent shall have received received, with a copy for each Funding Agent, this Third Amendment duly executed counterpart signature page of this Amendment and delivered by the Borrower, each duly authorized officers of the Borrower’s subsidiaries listed on the signature pages heretoIssuer, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent Administrator and the Collateral Agent.Indenture Trustee;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by itreceived, including an opinion with a copy for each Funding Agent, each of Ropes & ▇▇▇▇ LLPthe Second Amendment to the SUBI Servicing Supplement, New York counsel the First Amendment to the Loan PartiesAgreement, the Second Amended and Restated Fleet Receivable SUBI Supplement and the Amended and Restated Base Indenture, duly executed and delivered by duly authorized officers of the parties thereto;
(c) The representations and warranties of the Issuer and VMS contained in the Transaction Documents to which each dated is a party shall be true and correct in all material respects as of the Third Amendment Effective Date and reasonably satisfactory to as if made as of the Administrative Agent.Third Amendment Effective Date;
(d) Each The Indenture Trustee and the Administrative Agent shall have received the Consent of Purchaser Groups in the conditions set forth in Section 4.02 form of Exhibit E to this Third Amendment, duly executed by the Amended CP Conduit Purchasers, the APA Banks and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.Administrative Agent;
(e) The Indenture Trustee and the Administrative Agent shall have received a certificate the amended and restated Fee Letter relating to the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Supplement in the form of a Responsible Officer of Exhibit F to this Third Amendment, duly executed by the BorrowerIssuer, certifying the conditions precedent set forth in Sections 4.02(a) Administrator, the Administrative Agent and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.each Funding Agent;
(f) The Administrative Agent shall have received received, with a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination counterpart addressed to each CP Conduit Purchaser and the Funding Agent, the Program Support Provider and the APA Banks with respect to such CP Conduit Purchaser and the Indenture Trustee, opinions of counsel to the Issuer, Holdings, SPV, the Origination Trust, the Intermediary and the Administrator, dated the Third Amendment Effective Date, as to due organization of the Origination Trust, Holdings, SPV, the Administrator, the Intermediary and the Issuer, bankruptcy (“true sale” and “non-substantive consolidation”), perfection and priority of security interests in the Series 2006-2 Collateral, creation and perfection of the security interests in the Loan Collateral, including the SUBI Certificates and the Sold Units and the Fleet Receivables, the characterization of the Series 2006-2 Investor Notes as debt for U.S. federal income tax purposes, the characterization of the Issuer not as an association or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and other matters, in each Mortgaged Property;case, in form and substance acceptable to the addressees thereof and their respective counsel; and
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from letters signed by Moody’s and Standard & Poor’s, confirming that the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the Series 2006-2 Investor Notes have been publicly rated “Consent DeadlineAA-” and each such Lender“Aa2”, a “Consenting Lender”)respectively.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Amended and Restated Series 2006 2 Indenture Supplement (PHH Corp)
Conditions to Effectiveness. This The effectiveness of this Amendment shall become effective only upon is subject to the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):precedent, unless specifically waived in writing by Lenders:
(a) The Administrative Collateral Agent shall have received a on behalf of the Lenders:
(i) this Amendment, duly executed counterpart signature page by Borrower;
(ii) Sixth Amended and Restated Secured Promissory Notes, one for each Lender, representing that Lender's Revolving Credit Percentage of Borrower's indebtedness, duly executed by Borrower in the form of the attached Annex A;
(iii) a Collateral Assignment of Asset Purchase Agreement, duly executed by Borrower pursuant to which Borrower shall collaterally assign its rights under the Asset Purchase Agreement, dated and effective as of February 1, 2001 (the "Asset Purchase Agreement"), by and among Borrower, Page Two, Inc., an Illinois corporation, Kewee 3, Inc., a Texas corporation and certain stockholders named therein, to Lenders, in form and substance satisfactory to Lenders;
(iv) a Consent, Ratification and Release, duly executed by Merchants Metals Holding Company;
(v) a Company General Certificate acknowledging (A) that Borrower's Board of Directors has met and has adopted, approved, consented to and ratified resolutions which authorize the execution, delivery and performance by Borrower of this Amendment by and all Other Agreements to which Borrower is or is to be a party, and (B) the Borrower, names of the officers of Borrower authorized to sign this Amendment and each of the Borrower’s subsidiaries listed Other Agreements to which Borrower is or is to be a party hereunder (including the certificates contemplated herein) together with specimen signatures of such officers;
(vi) written instructions from Borrower directing the application of proceeds of the Loans made in connection with this Amendment; and
(vii) copies of (a) the Asset Purchases Agreement and each document related thereto, and a certificate of the proper officers of Borrower certifying that the documents attached to that certificate constitute a true, correct, and complete set of the documents related to the Asset Purchase Agreement, and that all conditions precedent to the Asset Purchase have been met or waived, and (b) evidence that assets acquired in connection with the Asset Purchase have been added to the existing property and liability insurance policies of the Company, and that Collateral Agent has been named as mortgagee, loss-payee, and additional insured on the signature pages hereto, the Required all such property and liability insurance policies pursuant to issued endorsements in form and substance satisfactory to Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to The representations and warranties contained herein and in the order of such Term B-5 Lender duly executed by Loan Agreement and the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 LoansOther Agreements, as extended; provided that such Term B-5 Lender each is amended hereby, shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated true and correct as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied date hereof, as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied if made on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(hc) The Borrower No Default or Event of Default shall have issued at least $500.0 million aggregate principal amount occurred and be continuing, unless such Default or Event of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth Default has been otherwise specifically waived in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans)writing by Lenders.
(id) After giving effect to (i) the prepayment of Term Loans from the net proceeds Lenders shall have received payment, in immediately available funds, of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis62,500 amendment fee.
(je) The Administrative Agent shall have received from the Borrower any fees required All corporate proceedings taken in connection with the transactions contemplated by this Amendment in Dollars for the account of each Lender (and all documents, instruments and other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) legal matters incident thereto shall be allocated satisfactory to the Borrower for purposes of Section 2.05(a)(i) of the Amended Collateral Agent, Lenders and Restated Credit Agreementtheir legal counsel.
Appears in 1 contract
Conditions to Effectiveness. This Amendment Agreement shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 on and as of the Existing Credit Agreement of first Business Day on which the following conditions shall have been satisfied, or waived by the Incremental Lenders (the date of satisfaction or waiver of such conditions being referred to herein as the “Fourth Amendment Effective Date”):
(a) The the Administrative Agent shall have received (i) counterparts of this Agreement, duly executed and delivered by, or on behalf of, (A) the Borrower, (B) Holdings, (C) each Subsidiary Guarantor, (D) the Administrative Agent, (E) each Incremental Revolving Lender and (F) each Incremental Term Lender that is not delivering a Lender New Commitment (as defined below); and (ii) a duly executed and delivered “Lender New Commitment” (as defined in, and in the form attached to, the Cashless Roll Letter (2019)) from each Incremental Term Lender not described in the preceding clause (a)(i)(F) (with the Incremental Lenders described in clauses (a)(i)(E), (a)(i)(F) and (a)(ii) collectively constituting all Lenders as of the Fourth Amendment Effective Date after giving effect to the Cash Prepayment Component);
(b) the Administrative Agent (i) shall receive contemporaneously the full principal amount of the Cash Prepayment Component, and (ii) shall have received a duly executed and completed written notice of voluntary termination of all Commitments (for purposes of this definition, as defined in the Credit Agreement) and voluntary prepayment of the Tranche B Term Loans delivered to the Administrative Agent in accordance with the applicable provisions of Sections 4.2 and 5.1 of the Credit Agreement;
(c) the Administrative Agent shall have received a duly executed counterpart signature page and completed Notice of this Borrowing from the Borrower issued with respect to the Tranche B-1 Term Loans no later than 1:00 p.m. two Business Days prior to the Fourth Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, Effective Date;
(d) the Administrative Agent shall have received (i) a certified copy of the resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the board of directors, other managers or general partner of the Borrower and each other Credit Party (or a duly authorized committee thereof) authorizing the execution, delivery and performance of this Agreement and the Collateral Agent.performance of the Amended Credit Agreement and the other Credit Documents to which such Credit Party is a party, in each case as modified by this Agreement, certified as of the Fourth Amendment Effective Date by an Authorized Officer of such Credit Party as being in full force and effect without modification or amendment, and (ii) good standing certificates for such Credit Party for each jurisdiction in which such Credit Party is organized;
(be) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions incumbency certificates and/or other certificates of Authorized Officers of the Borrower and each other Credit Party as the Administrative Agent may reasonably be requested by itrequire evidencing the identity, including authority and capacity of each Authorized Officer of such Credit Party authorized to act as an opinion of Authorized Officer in connection with this Agreement, the Amended Credit Agreement and the other Credit Documents to which such Credit Party is a party;
(f) the Administrative Agent shall have received from Ropes & ▇▇▇▇ LLP, New York counsel to Holdings, the Loan Borrower and the other Credit Parties, each dated an executed legal opinion covering such matters as of the Amendment Effective Date Administrative Agent may reasonably request and otherwise reasonably satisfactory to the Administrative Agent.;
(dg) Each the representations and warranties contained (i) in Section 4 of this Agreement, and (ii) in Section 8 of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall and in the other Credit Documents, shall, in each case, be satisfied true and correct in all material respects, on and as of the Fourth Amendment Effective Date., except to the extent such representations and warranties specifically refer to an earlier date, in which case they are true and correct 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 in all respects on the Fourth Amendment Effective Date or on such earlier date, as the case may be (after giving effect to such qualification);
(eh) The no Default or Event of Default exists immediately before or immediately after giving effect to this Agreement;
(i) the Administrative Agent shall have received a certificate certificate, dated as of a Responsible the Fourth Amendment Effective Date, signed by an Authorized Officer of the Borrower, Borrower certifying as to compliance with the conditions precedent set forth in Sections 4.02(aclauses (g) and (bh) of this Section 5;
(j) the Amended and Restated Credit Agreement Administrative Agent shall have been satisfied on and as of received an executed Note for each Lender that requests a Note at least three Business Days prior to the Fourth Amendment Effective Date.;
(fk) The the Administrative Agent shall have received all documentation and other information reasonably requested in writing at least five Business Days prior to the date hereof in order to allow any Additional Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the PATRIOT ACT;
(l) the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect solvency certificate from the chief financial officer of the Borrower as to each Mortgaged Property;the solvency (on a consolidated basis) of the Borrower and its Subsidiaries as of the Fourth Amendment Effective Date; and
(gm) The the Borrower shall have paid all reasonable fees and documented out-of-pocket costs and expenses of the Administrative Agent (including the reasonable legal fees and expenses documented fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPcounsel) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced for which invoices have been presented at least one two Business Day Days prior to the date hereofFourth Amendment Effective Date.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Section 1 of this Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement all of the following conditions precedent (the date of satisfaction or waiver of such conditions being referred to herein as the “Second Amendment Effective Date”):
(a) The Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by A. On or before the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Second Amendment Effective Date., Obligors shall deliver to Lenders (or to Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the Second Amendment Effective Date:
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it1. A certificate, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Second Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 respective Secretary, general partner, manager or members of each Borrower and Guarantor, certifying that there have been no changes to its respective Organizational Documents delivered to Lenders on September 30, 2008;
2. Certified copies of all corporate, limited partnership and limited liability company action (as appropriate) taken by Borrowers and Guarantor, including resolutions of their respective Boards of Directors, authorizing the Amended execution, delivery and Restated Credit Agreement shall be satisfied performance of this Amendment, certified as of the Second Amendment Effective Date;
3. An incumbency and signature certificate (dated as the date of this Agreement) of the Secretaries, general partners, managers or members (as appropriate) of each Borrower and Guarantor, certifying the names and true signatures of the officers or other authorized Persons of Borrower and Guarantor authorized to sign this Amendment; and
4. Copies of this Amendment executed by each Obligor.
(e) The Administrative B. Requisite Lenders shall have executed this Amendment.
C. On or before the Second Amendment Effective Date, all corporate and other proceedings taken or to be taken by any Obligor in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Agent and such counsel, and Agent and such counsel shall have received a certificate all such counterpart originals or certified copies of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and such documents as of the Amendment Effective DateAgent may reasonably request.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower D. Borrowers shall have paid (i) to Agent, all reasonable fees of Agent’s outstanding expenses under the Loan Documents, including inspection and out-of-pocket expenses appraisal costs, and (including the reasonable legal fees and expenses of ▇▇ii) to ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative , counsel to Agent, ▇▇▇▇▇ Fargo Securities, LLC all fees and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent expenses invoiced at least one Business Day prior to through the date hereof.
(h) The Borrower E. Borrowers shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof pay to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account ratable benefit of each Lender (other than a Defaulting Lender) that has returned executing this Amendment, an executed signature page amendment fee equal to this Amendment to $250,000 in the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)aggregate.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (Orleans Homebuilders Inc)
Conditions to Effectiveness. This Amendment Agreement shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement date on which each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein has been satisfied, as the “Amendment Effective Date”):determined by Agent in its sole discretion:
(a) The Administrative Agent shall have received (including by way of facsimile or other electronic transmission) a duly authorized, executed and delivered counterpart of the signature page to this Agreement from each Borrower, the Agent and the Lenders;
(b) Agent shall have received a fully executed copy of an amendment to the Affiliated Credit Agreement, in form and substance reasonably satisfactory to Agent;
(c) Agent shall have received an updated Perfection Certificate, in form and substance reasonably satisfactory to Agent;
(a) Agent shall have received a duly authorized, executed and delivered secretary’s certificate from each Credit Party certifying as to (i) the names and signatures of each officer of each Credit Party authorized to execute and deliver this Agreement and all documents executed in connection therewith, (ii) the organizational documents of each Credit Party attached to such certificate are complete and correct copies of such organizational documents as in effect on the date of such certification, (iii) the resolutions of each Credit Party’s board of directors or other appropriate governing body approving and authorizing the execution, delivery and performance of this Agreement and the other documents executed in connection therewith, and (iv) certificates attesting to the good standing of each Credit Party in each applicable jurisdiction;
(b) Agent shall have received, with respect to each Credit Party, (i) current UCC searches from the Secretary of State of its jurisdiction of organization; and (ii) judgment, pending litigation, federal tax lien, personal property tax lien, and corporate and partnership tax lien searches, in each applicable jurisdiction, in each case, with results reasonably acceptable to the Agent;
(c) Agent shall have received an opinion of counsel to the Credit Parties, addressed to the Agent and the Lenders, addressing such matters that the Agent may reasonably request;
(d) Agent shall have received a duly executed counterpart signature page Notice of this Amendment by the Borrower, each Borrowing as required pursuant to Section 2.1(a)(ii) of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.Credit Agreement;
(be) Each Term Lender executing this Amendment as a “Term B-5 Lender” all representations and warranties of Borrowers contained herein shall have received, if requested by it, one or more replacement Notes payable to be true and correct in all material respects (without duplication of any materiality qualifier in the order text of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(crepresentation or warranty) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory date hereof except to the Administrative Agent.extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date (and such parties’ delivery of their respective signatures hereto shall be deemed to be its certification thereof);
(f) prior to and after giving effect to the agreements set forth herein, no Default or Event of Default shall exist under any of the Financing Documents; and
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent Borrowers shall have received a certificate of a Responsible Officer of delivered such other documents, information, certificates, records, permits, and filings as the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid may reasonably request in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon on December 10, 2002 (the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement "Amendment Effective Date") if each of the following conditions (the date of satisfaction precedent shall have been satisfied on or waiver of prior to such conditions being referred to herein as the “Amendment Effective Date”):day:
(a) The Administrative Agent shall have received received, with a copy for each Funding Agent, this Amendment duly executed counterpart signature page of this Amendment and delivered by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages heretoIssuer, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Collection Agent and the Collateral Agent.Indenture Trustee;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” The Administrative Agent shall have received, if requested by itwith a copy for each Funding Agent, one or more replacement Notes payable the Supplemental Indenture No.1, dated as of the date hereof, to the order of such Term B-5 Lender duly executed by Base Indenture (the Borrower "Supplemental Indenture"), substantially in substantially the form of Annex Exhibit A heretoto this Amendment, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to duly executed and delivered by the Borrower any Note held by it prior to Issuer and the Amendment Effective Date.Indenture Trustee;
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by itreceived, including an opinion of Ropes & ▇▇▇▇ LLPwith a copy for each Funding Agent, New York counsel to the Loan PartiesFirst Amendment, each dated as of the Amendment Effective Date and reasonably satisfactory date hereof, to the Administrative Agent.Receivables Purchase Agreement (the "Receivables Purchase Agreement Amendment"), substantially in the form of Exhibit B to this Amendment, duly executed and delivered by the Seller and the Issuer;
(d) Each of The Administrative Agent shall have received, with a copy for each Funding Agent, the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied First Amendment, dated as of the Amendment Effective Date.date hereof, to the Dunlop Receivables Purchase Agreement (the "Dunlop Receivables Purchase Agreement Amendment"), substantially in the form of Exhibit C to this Amendment, duly executed and delivered by Dunlop and the Seller;
(e) The Administrative Agent shall have received received, with a certificate of a Responsible Officer of copy for each Funding Agent, the BorrowerFirst Amendment, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and dated as of the Amendment Effective Date.date hereof, to the Collection Agency Agreement (the "Collection Agency Agreement Amendment"), substantially in the form of Exhibit D to this Amendment, duly executed and delivered by the Collection Agent, the Issuer and the Indenture Trustee;
(f) The Administrative Agent shall have received received, with a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect copy for each Funding Agent, the consent and waiver of each CP Conduit Purchaser and each APA Bank, in the form of Exhibit E to each Mortgaged Propertythis Amendment (the "Consent and Waiver");
(g) The Borrower After giving effect to the Consent and Waiver, the representations and warranties of the Issuer, the Seller and the Collection Agent contained in the Transaction Documents shall be true and correct in all material respects as of the Amendment Effective Date, except to the extent any such representation or warranty is expressly made only as of another date (in which case it shall be true and correct in all material respects on and as of such other date);
(h) On the Amendment Effective Date, the Issuer shall reduce the Series 2001-1 Invested Amount by effecting a Decrease pursuant to Section 2.5 (without, however, giving effect to the requirement under Section 2.5 that Decreases occur only on Reporting Dates during the Revolving Period) of the Series 2001-1 Supplement in an amount equal to $23,916,000;
(i) On the Amendment Effective Date, the Indenture Trustee, acting at the written direction of the Collection Agent, shall have withdrawn from the Series 2001-1 Expense Subaccount and paid all reasonable fees to ABN AMRO, the Funding Agent with respect to Amsterdam Funding Corporation, $248,302.84 pursuant to Section 6 of this Amendment;
(j) The Transferor Purchaser shall have made the following assignments in accordance with Section 11.10(e) of the Series 2001-1 Supplement: $22,391,036 of the Transferor Purchaser's Purchaser Invested Amount to Park Avenue Receivables Corporation and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by ; $28,073,328 of the Administrative AgentTransferor Purchaser's Purchaser Invested Amount to Special Purpose Accounts Receivables Cooperative Corporation and Canadian Imperial Bank of Commerce; $14,036,664 of the Transferor Purchaser's Purchaser Invested Amount to Jupiter Securitization Corporation and Bank One, ▇▇▇▇▇ Fargo SecuritiesN.A.; and $14,036,664 of the Transferor Purchaser's Purchaser Invested Amount to Thunder Bay Funding Inc. and Royal Bank of Canada, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (delivered the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment related Purchaser Supplements to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (and the “Consent Deadline” and each such Lender, a “Consenting Lender”).Issuer; and
(k) Each prepayment Funding Agent with respect to a CP Conduit Purchaser and the APA Banks with respect to such CP Conduit Purchaser shall have received payment of a renewal fee in an amount equal to 0.20% of the Term B-2 Loans pursuant Maximum Purchaser Invested Amount with respect to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreementsuch Purchaser.
Appears in 1 contract
Sources: Series 2001 1 Supplement (Goodyear Tire & Rubber Co /Oh/)
Conditions to Effectiveness. This Section 1 of this Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement all of the following conditions precedent (the date of satisfaction or waiver of such conditions being referred to herein as the “Third Amendment Effective Date”):
(a) The Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by A. On or before the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Third Amendment Effective Date., Obligors shall deliver to Lenders (or to Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender) the following, each, unless otherwise noted, dated the Third Amendment Effective Date:
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it1. A certificate, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Third Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 respective Secretary, general partner, manager or members of each Borrower and Guarantor, certifying that there have been no changes to its respective Organizational Documents delivered to Lenders on September 30, 2008;
2. Certified copies of all corporate, limited partnership and limited liability company action (as appropriate) taken by Borrowers and Guarantor, including resolutions of their respective Boards of Directors, authorizing the Amended execution, delivery and Restated Credit Agreement shall be satisfied performance of this Amendment, certified as of the Third Amendment Effective Date;
3. An incumbency and signature certificate (dated as the date of this Agreement) of the Secretaries, general partners, managers or members (as appropriate) of each Borrower and Guarantor, certifying the names and true signatures of the officers or other authorized Persons of Borrower and Guarantor authorized to sign this Amendment; and
4. Copies of this Amendment executed by each Obligor.
(e) The Administrative B. Requisite Lenders shall have executed this Amendment.
C. On or before the Third Amendment Effective Date, all corporate and other proceedings taken or to be taken by any Obligor in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in form and substance to Agent and such counsel, and Agent and such counsel shall have received a certificate all such counterpart originals or certified copies of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and such documents as of the Amendment Effective DateAgent may reasonably request.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower D. Borrowers shall have paid (i) to Agent, all reasonable fees of Agent’s outstanding expenses under the Loan Documents, including inspection and out-of-pocket expenses appraisal costs, and (including the reasonable legal fees and expenses of ▇▇ii) to ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative , counsel to Agent, ▇▇▇▇▇ Fargo Securities, LLC all fees and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent expenses invoiced at least one Business Day prior to through the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (Orleans Homebuilders Inc)
Conditions to Effectiveness. This Amendment The amendments and waivers contained in Sections 2 and 3 above shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement of date when, and only when, the following conditions have been satisfied as determined in Agent's and Term B Lender's sole and absolute discretion (the first date of satisfaction or waiver of upon which all such conditions have been satisfied being herein referred to herein as the “Amendment "Effective Date”"):
(a) The Administrative Agent shall have received a duly executed counterpart signature page counterparts of this First Amendment have been executed and delivered by the BorrowerAgent, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount Borrowers, and Guarantors on or before the 18th day of Term B-2 LoansNovember, the Administrative Agent and the Collateral Agent.2003;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” Borrowers shall have received, if requested by it, one or more replacement Notes payable delivered to the order Agent and Term B Lender opinions of such Borrowers' counsel in form and substance satisfactory to Agent and Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.B Lender;
(c) The Administrative Agent Borrowers shall have received such opinions delivered to Agent and Term B Lender a certificate in form and substance satisfactory to Term B Lender from the Chief Financial Officer of the Administrative Borrower certifying that (i) the increase in Term Loan B as may reasonably be requested evidenced by it, including an opinion this First Amendment is permitted under the terms and conditions of Ropes & ▇▇▇▇ LLP, New York counsel the Indenture and (ii) Borrowers have the ability to incur at least $2,500,000 of additional indebtedness under the terms and conditions of the Indenture after giving effect to the Term Loan Parties, each dated B as of increased by this First Amendment and the Amendment Effective Date and reasonably satisfactory to increase in the Administrative Agent.Other Senior Debt;
(d) Each of Borrowers shall have executed and delivered the conditions set forth Mortgage Amendments in Section 4.02 of the Amended form attached hereto as Annex II and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.otherwise in form and substance satisfactory to Agent and Term B Lender;
(e) The Administrative the Agent and the Term B Lender shall have received (i) a certificate copy of a Responsible the Cypress Second Amendment and any other agreement, document or instrument related thereto, each certified by the Chief Executive Officer or Chief Financial Officer of the BorrowerAdministrative Borrower as true, certifying complete and correct and in full force and effect on the conditions precedent set forth in Sections 4.02(a) Effective Date and (bii) a form of the Amended Related Cypress Amendments to be filed by Borrowers and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.Other Senior Lenders;
(f) The Administrative the Agent and the Term B Lender shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect an acknowledgment, duly executed by each Other Senior Lender acknowledging and agreeing that (i) the additional Other Senior Debt to each Mortgaged Propertybe incurred by Borrowers as permitted pursuant to this First Amendment shall constitute Cypress Indebtedness and be subject to the terms of the Intercreditor Agreement and (ii) the additional Term Loan B amounts to be incurred by Borrowers as permitted pursuant to this First Amendment shall constitute Foothill Indebtedness;
(g) The Borrower Borrowers shall have paid to Term B Lender an amendment fee in the amount of $300,000 in immediately available funds;
(h) Borrowers shall have paid to Agent, for the account of the Lenders, an amendment fee in the amount of $60,000 in immediately available funds; and
(i) Borrowers have paid all reasonable fees fees, costs and out-of-pocket expenses (including incurred in connection with this First Amendment as of the reasonable date of this First Amendment, including, without limitation, legal fees and expenses of ▇Paul, Hastings, Janofsky & Walker LLP, counsel to the Term B Lender, and Schulte Roth & ▇▇▇▇▇ LL▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇nsel to Agent, as have been billed as of ▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this ▇▇t▇ ▇▇ th▇▇ ▇▇rst Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment Agreement and the amendment and restatement of the Original Credit Agreement as set forth in Section 2 hereof shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement first date (such date being referred to as the “Restatement Effective Date”) when each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):shall have been satisfied:
(a) The Administrative Agent Agent’s receipt of the following, each of which shall have received a duly be originals or facsimiles of the following:
(i) executed counterpart signature page counterparts of this Amendment by the Agreement from Holdings, Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent Agent, L/C Issuer and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Swing Line Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory Lender listed on Schedule 2.01A to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied and Lenders under the Original Credit Agreement constituting the Required Lenders under and as defined in the Original Credit Agreement;
(ii) executed counterparts of the Amendment Guarantor Consent and Reaffirmation (substantially in the form of Annex B attached hereto) from each of the Guarantors;
(iii) a Note executed by Borrower in favor of each Lender providing a New Revolving Credit Commitment, Dollar Term B-1 Loan or Euro Term B-1 Loan that has requested a Note at least two Business Days in advance of the Restatement Effective Date.;
(eiv) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each the Mortgaged PropertyProperty (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and the applicable Loan Party relating thereto) and, if any such Mortgaged Property is located in a special flood hazard area, evidence of flood insurance to the extent required pursuant to the last sentence of Section 6.07 of the Credit Agreement;
(gv) The Borrower shall have paid all reasonable fees 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 out-of-pocket expenses 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 on the Restatement Effective Date;
(including vi) an opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the reasonable legal fees Loan Parties, an opinion from Ice ▇▇▇▇▇▇ LLP, Indiana counsel to the Loan Parties, an opinion from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Delaware counsel to the Loan Parties, and expenses of an opinion from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by , Florida counsel to the Loan Parties, in each case, or other counsel reasonably satisfactory to the Administrative Agent in the applicable jurisdictions, addressed to the Administrative Agent and the Lenders, and in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, ;
(vii) a certificate attesting to the extent invoiced at least one Business Day prior to Solvency of Borrower and its Subsidiaries (taken as a whole) on the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, Restatement Effective Date after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, Agreement from the combined principal amount Chief Financial Officer of Borrower; and
(viii) copies of a recent lien and judgment search in each jurisdiction reasonably requested by the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basisAdministrative Agent with respect to the Loan Parties.
(jb) The Administrative Agent and the Joint Bookrunners shall have received from all fees and expenses required to be paid or reimbursed by Borrower as separately agreed between Borrower and the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)Joint Bookrunners.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon The effectiveness of this Restatement Agreement is subject to the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as are satisfied, the “Amendment Second Restatement Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from the Loan Parties, (ii) the Consenting Lenders constituting the Required Lenders, (iii) the Issuing Banks and (iv) the Swingline Lender either (A) a duly executed counterpart of this Restatement Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Administrative Agent that such party signed a counterpart of this Restatement Agreement (which may include delivery of a signed signature page of this Amendment Restatement Agreement by the Borrowerfacsimile or other means of electronic transmission (e.g., each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent“pdf”)).
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” The Administrative Agent shall have received, if requested by iton behalf of itself and the Lenders party hereto, one or more replacement Notes payable the executed legal opinions of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A heretoBorrower, evidencing such Term B-5 Lenders’ Term B-5 Loans(ii) CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, as extended; provided that such Term B-5 Lender shall have returned local counsel to the Borrower any Note held by it prior Guarantors in the United Kingdom and (iii) ▇▇▇▇▇ ▇▇▇▇▇ Jersey LLP, local counsel to Parent in Jersey, in each case, in form reasonably satisfactory to the Amendment Effective DateAdministrative Agent. The U.S. Parent Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a signed certificate of a Responsible Officer of the Borrower, certifying U.S. Parent Borrower stating that the conditions precedent set forth in Sections Section 4.02(a) and (b) of the Amended and Restated Credit Agreement are satisfied as of such date.
(d) The Administrative Agent shall have been satisfied on received such customary closing documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Amendment Loan Parties and the authorization of the transactions contemplated by this Restatement Agreement (in each case, to the extent any such certificates are available on a timely basis from the relevant jurisdiction (provided that if such certificates are not available on a timely basis from such relevant jurisdiction, the Borrowers shall use commercially reasonable efforts to provide such certificates following the Second Restatement Effective Date on a timely basis)), all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) To the extent reasonably requested in writing by the Lenders at least five Business Days prior to the Second Restatement Effective Date, the Lenders shall have received on or prior to the Second Restatement Effective Date (i) all documentation and other information in order to allow the Lenders to comply with the USA PATRIOT Act and (ii) a Beneficial Ownership Certification.
(f) The Administrative Agent and the Arrangers shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including other amounts due and payable on or prior to the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative AgentSecond Restatement Effective Date, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendmentincluding, to the extent invoiced at least one Business Day prior to the date hereofSecond Restatement Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(jg) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars received, for the account of each Consenting Lender (as defined below) (other than a Defaulting Lender) that has returned an executed signature page ), a fee equal to this Amendment to 0.50% of the Administrative Agent at aggregate outstanding principal amount of the Term Loans and Revolving Commitments held by such Consenting Lender on the Second Restatement Effective Date. “Consenting Lender” shall mean each Lender who, on or prior to 12:00 p.m., New York City time time, on September 24May 1, 2010 (the “Consent Deadline” 2020, executes and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated delivers to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Administrative Agent a signature page to this Restatement Agreement.
Appears in 1 contract
Sources: Restatement Agreement (Aptiv PLC)
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (on the date of satisfaction or waiver of such conditions being referred to herein as (the “Amendment No. 1 Effective Date”):) on which:
(a) The Administrative Agent (or its counsel) shall have received a duly executed counterpart signature page counterparts of this Amendment signed by the Parent Borrower, each of the Borrower’s subsidiaries listed on the signature pages heretoGuarantors, the Required Lenders, Incremental Term B-2 A Dollar Lenders holding a majority in principal amount of Term B-2 Loans, and the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” The Administrative Agent shall have receivedreceived the legal opinion of Ropes & G▇▇▇ LLP, if requested by it, one or more replacement Notes payable counsel to the order of such Term B-5 Lender duly executed by the Borrower Loan Parties, in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned and substance reasonably satisfactory to the Borrower any Note held by it prior to the Amendment Effective DateAdministrative Agent.
(c) The Administrative Agent shall have received such opinions (i) copies of each Organization Document executed and delivered by the Parent Borrower and each Guarantor, as may reasonably be requested by itapplicable, including an opinion of Ropes & ▇▇▇▇ LLPand, New York counsel to the Loan Partiesextent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 1 Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of the Parent Borrower 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. 1 Effective Date by its secretary or an assistant secretary as being in full force and reasonably satisfactory effect without modification or amendment and (iv) if available, a good standing certificate from the applicable Governmental Authority of the Parent Borrower and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Administrative AgentAmendment No. 1 Effective Date.
(d) Each The Administrative Agent, Incremental Term A Dollar Lenders and lead arrangers shall have been paid all fees payable to the Administrative Agent, the Incremental Term A Dollar Lenders and the lead arrangers on the Amendment No. 1 Effective Date (including, without duplication of the conditions fees paid pursuant to this Amendment, those set forth in Section 4.02 of the Amended Fee Letter dated April 28, 2015, by and Restated Credit Agreement among the Parent Borrower and the Incremental Term A Lenders party thereto) (it being understood that this condition shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
fees owed to the Incremental Term A Dollar Lenders when such fees are received by the Administrative Agent) and, to the extent invoiced at least two (g2) The Borrower shall have paid all reasonable fees and Business Days prior to the Amendment No. 1 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 pursuant to Section 10.04 of the Credit Agreement, including the reasonable legal fees and expenses of ▇C▇▇▇▇▇ ▇▇▇▇▇▇ & ▇R▇▇▇▇▇▇ LLPllp.
(e) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at At least one three (3) Business Day Days prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a)Effective Date, the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Borrower any fees required in connection with this Amendment in Dollars for the account Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of each Lender Pub. L. 107-56 (other than a Defaulting Lendersigned into law October 26, 2001)) that has returned an executed signature page to this Amendment been requested in writing at least ten (10) Business Days prior to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.Amendment No. 1
Appears in 1 contract
Conditions to Effectiveness. This Amendment (including the Amended and Restated Credit Agreement) shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 on and as of the Existing Credit Agreement of first Business Day when the following conditions have been satisfied (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(a) The Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, counterparts (or written evidence satisfactory to the Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart) of (1) this Amendment duly executed by (i) each Loan Party, (ii) the Administrative Agent, (iii) the Collateral Agent, (iii) the Swing Line Lender, (iv) each Issuing Bank, (v) the Lenders constituting at least the Required Lenders under the Existing Credit Agreement, in the case of this clause (v), prior to 12:00 p.m., New York City time, on March 11, 2014 (the “Consent Deadline”), (vi) the Lenders constituting all of the Revolving Lenders, all of the Lenders holding Tranche A Term Loans under the Existing Credit Agreement and all of the Lenders holding Tranche B Term Loans under the Existing Credit Agreement and (vii) each Lender Counterparty and (2) a joinder agreement to the CK Intercreditor Agreement duly executed by the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested (in each case, executed and delivered by iteach applicable Loan Party) with respect to each Mortgage: (a) a modification to each existing Mortgage (each a “Mortgage Modification”), including an opinion duly executed and acknowledged by each Loan Party NY\6180170.15 that is the owner of Ropes & ▇▇▇▇ LLP, New York counsel or holder of any interest in the applicable Mortgaged Property giving effect to the Loan Parties, each dated as amendment of the Amendment Effective Date Existing Credit Agreement as contemplated hereby, and reasonably satisfactory to otherwise in form for recording in the Administrative Agent.
(d) Each recording office of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrowerapplicable political subdivision where such Mortgaged Property is situated, certifying the conditions precedent set forth in Sections 4.02(a) and (b) a date-down endorsement or other such modification endorsement reasonably acceptable to the Collateral Agent in respect of the Amended each Title Policy currently applicable to any such Mortgage and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(fc) The Administrative Agent shall have received a completed “Life-of-Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;Property on which a “Building” (as defined in 12 CFR Chapter III, Section 339.2) is located and if any Mortgaged Property is located in a flood zone as indicated by the “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination, evidence of a policy of flood insurance for such Mortgaged Property written in an amount not less than the outstanding principal amount of the indebtedness secured by such Mortgage that is reasonably allocable to such real property or the maximum limit of coverage made available with respect to the particular type of property under the National Flood Insurance Act of 1968, whichever is less, and which policy has a term ending not later than the maturity of the Indebtedness secured by such Mortgage.
(gc) The Replacement Lender shall have, immediately prior to the effectiveness of this Amendment, paid to each Non-Consenting Lender all amounts required to be paid by the Replacement Lender pursuant to clause (1) of the first proviso in Section 2.23 of the Existing Credit Agreement and the applicable Borrower shall have paid to each Non-Consenting Lender all amounts required to be paid by such Borrower pursuant to clause (2) of the first proviso in Section 2.23 of the Existing Credit Agreement, in each case in order to give effect to the transaction contemplated by Section 2(c) of this Amendment.
(d) The U.S. Borrower shall have paid all reasonable fees and out-of-pocket reasonable expenses (including the reasonable including, without limitation, legal fees and expenses expenses) of ▇the Lead Arrangers, the Administrative Agent and the Lenders as and to the extent required pursuant to the terms of the Engagement Letter and invoiced to the U.S. Borrower at least two Business Days prior to the Effective Date.
(e) The Administrative Agent shall have received originally executed copies of the favorable written opinions of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, as New York counsel to the Loan Parties, Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by , as Delaware counsel to the Administrative AgentLoan Parties, ▇▇▇▇▇▇ Fargo Securities▇▇▇▇▇▇ Rosenman LLP, LLC as California counsel to the Loan Parties, Fennemore ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, as Nevada counsel to the Loan Parties, LeClairRyan, A Professional Corporation, as Virginia counsel to the Loan Parties, De Brauw Blackstone Westbroek New York B.V., P.C., as Dutch counsel to the Loan Parties, Loyens & Loeff N.V., as Dutch counsel to the Administrative Agent, the Lenders and Deutsche Bank Securities Inc. the other Secured Parties, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as general counsel of the U.S. Loan Parties, and ▇▇▇▇▇▇ ▇▇▇▇▇, as general counsel of the European Loan Parties, in each case as to such matters as are customary for financings of this type, dated as of the Effective Date and otherwise in form and substance reasonably satisfactory to the Administrative Agent (and each Loan Party hereby instructs such counsel to deliver such opinions to the Administrative Agent).
(f) The Administrative Agent shall have received in relation to each Loan Party (1) copies of each Organizational Document and, to the extent applicable, certified as of a recent date by the appropriate governmental official; (2) corporate or entity certificates incorporating, without limitation, signature and incumbency certificates of the officers, managers, members and/ NY\6180170.15 or directors of such Person executing the Loan Documents to which it is a party; (3) to the extent applicable, resolutions of the Board of Directors (which, in the case of each European Loan Party, shall be its board of managing directors) approving and authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the Effective Date, certified (to the extent required under applicable law or customary in accordance with local law or practice) as of the Effective Date by its secretary, its assistant secretary, director or any other competent officer or appropriate person as being in full force and effect without modification or amendment; (4) to the extent required under applicable law, the relevant entity’s Organizational Documents or internal regulations or, customary in accordance with local law or practice, a copy of resolutions from the general meeting of shareholders or its partners approving and authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the Effective Date, certified as of the Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; and (5) to the extent required under applicable law or customary in accordance with local law or practice, a good standing certificate from the applicable Governmental Authority of its jurisdiction of incorporation, organization or formation, dated a recent date prior to the Effective Date; provided that, in lieu of delivering the Organizational Documents required by clause (1) and/or the corporate or entity certificates required by clause (2), the Borrower Representative may deliver a certificate of an Authorized Officer certifying that there have been no amendments to those Organizational Documents and/or corporate or entity certificates previously delivered to the Administrative Agent in connection with the preparation, negotiation and execution Existing Credit Agreement.
(g) The Administrative Agent shall have received a Solvency Certificate from the U.S. Borrower in the form of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofExhibit B attached hereto.
(h) The Borrower No event shall have issued at least $500.0 million aggregate principal amount occurred and be continuing or would result directly from the effectiveness of senior unsecured notes (this Amendment and the “New Senior Notes”) and used consummation of the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment transactions contemplated hereby that would constitute a Default or an Event of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans)Default.
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes The representations and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by warranties contained in the Amended and Restated Credit Agreement, Agreement and in the combined principal amount other Loan Documents shall be true and correct in all material respects on and as of the Term B-2 Loans Effective Date to the same extent as though made on and Incremental Term B-3 Loans outstanding would not as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, to the extent any such representation or warranty is already qualified by materiality or Material Adverse Effect, such representation or warranty shall be greater than $500.0 million on a pro forma basistrue and correct in all respects.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection a fully executed and delivered Borrowing Notice with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment respect to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (Incremental Tranche A Term Loans and the “Consent Deadline” and each such Lender, a “Consenting Lender”)Incremental Tranche B Term Loans.
(k) Each prepayment of To the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated extent requested in writing to the U.S. Borrower for purposes of Section 2.05(a)(i) of at least 10 Business Days prior to the Amended Effective Date, the Lenders shall have received at least three days prior to the Effective Date all documentation and Restated Credit Agreementother information relating to the Loan Parties required by bank NY\▇▇▇▇▇▇▇.15 regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
Appears in 1 contract
Sources: Credit Agreement (PVH Corp. /De/)
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 The effectiveness of the Existing Credit Agreement amendments contained in Section 1 of this Amendment are conditioned upon satisfaction of the following conditions precedent (the date of satisfaction or waiver of on which all such conditions precedent have been satisfied being referred to herein as the “Second Amendment Effective Date”” which shall be determined by the date upon which the Administrative Agent delivers to the Borrower counterparts of this Amendment executed by the Administrative Agent):
(a) The the Administrative Agent shall have received a duly executed counterpart signature page signed written authorization from the Required Lenders to execute this Amendment, and shall have received counterparts of this Amendment signed by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, Holdings and the Administrative Agent and the Collateral Agent.;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” the Administrative Agent shall have received, if requested by it, one or more replacement Notes payable to received counterparts of the order consent of such Term B-5 Lender duly the Guarantors attached hereto as Annex I (the “Consent”) executed by each of the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.Guarantors;
(c) The each of the representations and warranties in Section 3 below shall be true and correct in all material respects on and as of the Second Amendment Effective Date;
(d) the Administrative Agent shall have received payment in immediately available funds of all expenses incurred by the Administrative Agent (including, without limitation, legal fees) reimbursable under the Credit Agreement and for which invoices have been presented;
(e) the Administrative Agent shall have received (i) commitments from banks and other financial institutions with respect to the Tranche C Term Loans in an aggregate principal amount equal to $95,923,358.60 and (ii) as applicable (x) a fully executed Lender Addendum in the form attached hereto as Annex II with respect to each such bank or other financial institution committing to fund such Tranche C Term Loans (and pursuant to which on the Second Amendment Effective Date such bank or other financial institution shall become a Tranche C Term Loan Lender, for all purposes under the Credit Agreement) or (y) a fully executed Conversion Notice in the form attached hereto as Annex III with respect to each Tranche B Term Lender irrevocably electing to convert its Tranche B Term Loans (and pursuant to which on the Second Amendment Effective Date the outstanding principal amount of Tranche B Term Loans held by such Lender shall convert into Tranche C Term Loans) (it being agreed and understood that delivery of a fully executed Conversion Notice by a Lender shall be deemed to constitute an authorization by such Lender directing the Administrative Agent to execute this Amendment);
(f) the Administrative Agent shall be satisfied that, simultaneously with the borrowing of the Tranche C Term Loans on the Second Amendment Effective Date, the Tranche B Term Loans will be converted into Tranche C Term Loans or repaid in full by the Borrower; and
(g) the Administrative Agent shall have received such other documents, instruments, certificates, opinions and approvals as it may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agentrequest.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (GNC Corp)
Conditions to Effectiveness. This Section 1.01 of this Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions on November 1, 2013 (the date of satisfaction or waiver of such conditions being referred to herein as the “Incremental Amendment Effective Date”):) when:
(a) The this Amendment shall have been executed and delivered by the Borrowers, the Loan Parties, each Incremental Term Lender party hereto and the Administrative Agent;
(b) the Administrative Agent shall have received copies of bring down personal property Lien, tax and judgment Lien searches received by the Company prior to the Incremental Amendment Effective Date, which shall not reveal the existence of any Liens on or security interest in Collateral of the Mortgaged Vessel Guarantors or any pledgor of Pledged Equity Interests other than (i) Permitted Liens or (ii) Liens as to which the Administrative Agent has received evidence satisfactory to it that the obligations secured by such Liens have been fully and finally discharged on or prior to the Incremental Amendment Effective Date;
(c) the Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Amendment Effective Date, in form and substance reasonably acceptable to the Administrative Agent, with appropriate insertions and attachments, including certified organizational authorizations, incumbency certifications, the certificate of incorporation or other similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified by a Responsible Officer as being in full force and effect on the Incremental Amendment Effective Date and (ii) a good standing certificate (in respect of each jurisdiction where the “good standing” concept exists) for each Loan Party from its jurisdiction of organization;
(d) the Administrative Agent shall have received a duly executed counterpart signature page of Solvency Certificate, dated the Incremental Amendment Effective Date, which demonstrates that the Company and the Restricted Subsidiaries, on a consolidated basis, are and, after giving effect to this Amendment by and the Borrowerother transactions contemplated hereby, each of the Borrower’s subsidiaries listed on the signature pages heretowill be and will continue to be, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, Solvent;
(e) the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” Arrangers shall have received, if requested by it, one received all fees required to be paid on or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Incremental Amendment Effective Date., and all expenses required to be paid on the Incremental Amendment Effective Date for which reasonably detailed invoices have been presented (including the reasonable fees and expenses of legal counsel to the Administrative Agent and the Arrangers) to the Company at least one (1) Business Day prior to Incremental Amendment Effective Date;
(cf) The the Administrative Agent shall have received such opinions as may reasonably be requested by it, including an the executed legal opinion of Ropes (i) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇, LLP, New York special counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(dii) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative AgentP.C., ▇▇▇▇▇▇▇▇ Fargo SecuritiesIslands and Liberia counsel for the Loan Parties, LLC (iii) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ & Associates, Republic of Malta counsel for the Loan Parties and Deutsche Bank Securities Inc. (iv) Vives y Asociados, Republic of Panama counsel for the Loan Parties, each of which shall be in connection with the preparation, negotiation form and execution of this Amendment or otherwise required to be paid in connection with this Amendment, substance reasonably satisfactory to the extent invoiced at least one Business Day prior to the date hereof.Administrative Agent;
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (ig) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from a certificate of a Responsible Officer of the Borrower Company, dated the Incremental Amendment Effective Date, which certifies that (i) the conditions of making any fees required extension of credit under Section 4.2 of the Credit Agreement are satisfied as of the Incremental Amendment Effective Date, (ii) the representations and warranties in connection with Section 3.01 of this Amendment shall be true and correct in Dollars for all material respects as of the account date hereof and (iii) the conditions of making an Incremental Term Loan set forth in Section 2.19(a) of the Credit Agreement are satisfied as of the Incremental Amendment Effective Date;
(h) the Administrative Agent shall have received an amendment to each Lender (other than a Defaulting Lender) that has returned an executed signature page existing Ship Mortgage existing prior to this the Incremental Amendment Effective Date relating to the Existing Vessels, M/V Navios Joy and M/V Navios Harmony in form and substance reasonably satisfactory to the Administrative Agent at Agent, reflecting this Amendment and the transactions contemplated hereunder; and
(i) the Company shall have deposited into the Collateral Account the Additional Cash Collateral on or prior to 12:00 p.m.the Incremental Amendment Effective Date; provided that, New York City time with respect to clauses (f) and (h) of this Section 1.02, if such items cannot be delivered on September 24the Incremental Amendment Effective Date after the Borrowers’ use of commercially reasonable efforts to do so, 2010 (then the “Consent Deadline” and each provision of such Lender, items shall not constitute a “Consenting Lender”).
(k) Each prepayment condition to the effectiveness of the Term B-2 Loans pursuant to Section VII(h)(b) this Amendment but instead shall be allocated required to be delivered within thirty (30) days (or such longer period as agreed to by the Borrower for purposes of Section 2.05(a)(iAdministrative Agent in its sole discretion) of the Amended and Restated Credit AgreementIncremental Amendment Effective Date.
Appears in 1 contract
Sources: Incremental Amendment (Navios Maritime Partners L.P.)
Conditions to Effectiveness. This Amendment shall not --------------------------- become effective only upon the satisfaction unless on or waiver in accordance with Section 10.01 of the Existing Credit Agreement before July 15, 1998 each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):shall have occurred:
(a) The Administrative this Amendment shall have been executed by the Borrower, the Loan Agent, the Documentation Agent, the Co-Agents, the Issuing Lender, each of the Lenders currently party to the Credit Agreement, GECC and each additional Lender being added as a Liquidity Lender;
(b) the Loan Agent shall have received an executed copy of the Intercreditor Agreement in the form attached hereto as Exhibit I, duly --------- executed by the parties thereto;
(c) the Loan Agent shall have received an executed copy of the First Amendment and Consent to the Amended Facilities Agreement in the form attached hereto as Exhibit J, duly executed by the parties thereto; ----------
(d) the Loan Agent shall have received a duly executed counterpart signature page original Liquidity Notes in the form attached hereto as Exhibit A-4; -----------
(e) the Loan Agent shall have received an executed copy of this Amendment by No. 2 to Master Lease Agreement No. 2 in form and substance acceptable to the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Loan Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender Lenders duly executed by the Borrower in substantially and the form 1996 Lease Loan Agent as consented to by each of Annex A hereto, evidencing such Term B-5 the 1996 Lease Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender ;
(f) the Borrower shall have returned paid (i) all fees required to be paid to the Borrower any Note held by it Loan Agent pursuant to the terms of the Confidential Agreement on or prior to the Amendment effectiveness hereof and (ii) all fees required to be paid to GECC on the Restructuring Effective Date.Date pursuant to the terms of its fee agreement with the Borrower of even date herewith;
(cg) The Administrative the Borrower shall have reimbursed the Loan Agent for all fees and expenses of counsel, financial advisors and other professionals;
(h) the corporate structure of and the Persons which are Subsidiaries of the Borrower shall be acceptable to the Liquidity Lenders;
(i) the Loan Agent shall have received such opinions as may reasonably be requested by it, including an opinion executed copy of Ropes & ▇▇▇▇ LLP, New York counsel the Confidential Agreement in form and substance acceptable to the Loan Parties, each dated as of Agent and (i) the Amendment Effective Date and reasonably satisfactory Lenders with respect to the Administrative Agent.provisions thereof regarding fees and (ii) the Liquidity Lenders with respect to the provisions thereof regarding the Budget;
(dj) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Loan Agent shall have received a certificate of a Responsible Officer or certificates of the BorrowerSecretary or Assistant Secretary of the Borrower and each of its Subsidiaries certifying: (i) a copy of the Certificate or Articles of Incorporation of such entity, certifying as theretofore amended; (ii) a copy of the conditions precedent set forth in Sections 4.02(abylaws of such entity, as theretofore amended; (iii) copies of all corporate action taken by such entity, including resolutions of its board of directors, authorizing the execution, delivery, and performance of this Amendment by the Borrower and each other instrument and document to be delivered by the Borrower and its Subsidiaries pursuant to this Amendment and the Facilities Agreement; and (biv) the names and true signatures of the Amended and Restated Credit Agreement shall have been satisfied on and as officers of the Borrower and its Subsidiaries authorized to sign this Amendment Effective Date.and the other instruments and documents to be delivered by the Borrower and its Subsidiaries under this Amendment;
(fk) The Administrative the Loan Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses opinions of ▇▇▇▇▇▇ ▇Akin, Gump, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by and the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC Borrower's General Counsel in form and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, substance acceptable to the extent invoiced at least one Business Day prior to the date hereof.Loan Agent;
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (il) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Loan Agent shall have received from evidence that the Borrower Common Collateral Loan Agent has been named as loss payee under all policies of casualty insurance, and as additional insured under all policies of liability insurance, required by any fees required Common Collateral Document (as such term is defined in connection with this Amendment the Facilities Agreement);
(m) the Loan Agent shall have received the other documents, instruments and agreements set forth on the List of Closing Documents (Restructuring) and the List of Closing Documents (Rollup) attached as Exhibit K hereto, in Dollars for the account of --------- each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment case in form and substance acceptable to the Administrative Loan Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (and duly executed by the “Consent Deadline” and each such Lender, a “Consenting Lender”).parties thereto; and
(kn) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) Loan Agent shall be allocated to have received such other approvals, opinions or documents as the Borrower for purposes of Section 2.05(a)(i) of Loan Agent, the Amended and Restated Credit AgreementCommon Collateral Agent or any Lender may reasonably request.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (Boston Chicken Inc)
Conditions to Effectiveness. This The effectiveness of this Ninth Amendment shall become effective only upon (including amendments contained in Article III) is subject to the satisfaction (or waiver in accordance with Section 10.01 of the Existing Credit Agreement written waiver) of the following conditions (the date of satisfaction (or waiver written waiver) of such conditions being referred to herein as the “Ninth Amendment Effective Date”):
(a) The Administrative Agent SECTION 2.1 This Ninth Amendment shall have received a been duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages heretoGuarantors, the Required Lenders, Term B-2 Revolving Credit Lenders holding a majority in principal amount of Term B-2 Loans, constituting at least the Majority Facility Lenders with respect to the Revolving Credit Facility and the Administrative Agent Agent, and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory delivered to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all SECTION 2.2 All reasonable fees and documented out-of-pocket expenses (including the reasonable legal fees and expenses required to be paid hereunder (including reasonable and documented out-of-pocket fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) or pursuant to the Amended Credit Agreement, and any other agreements with respect to the transactions contemplated by this Ninth Amendment, shall have been paid in full in cash or will be paid in full in cash on the Ninth Amendment Effective Date, including, without limitation, all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. Agent in connection with the preparation, negotiation execution and execution delivery of this Amendment or otherwise required to be paid in connection with this Ninth Amendment, in each case to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated required by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.;
(j) SECTION 2.3 The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in Section 2.5 and Section 2.6;
SECTION 2.4 The Administrative Agent shall have received with respect to each Loan Party (i) a certificate as of a recent date of the good standing (or equivalent) under the laws of its jurisdiction of organization from the Borrower relevant authority of its jurisdiction of organization and (ii) a certificate of a Responsible Officer of each Loan Party dated the Ninth Amendment Effective Date and certifying to the effect (A) that attached thereto are copies of each Organizational Documents of such Loan Party or alternatively that the Organizational Documents of the Loan Parties delivered to the Administrative Agent on the Eighth Amendment Effective Date have not been modified, rescinded or amended since such date and remain in full force and effect as of the Ninth Amendment Effective Date, (B) that the resolutions or written consents duly adopted by the board of directors or other governing body of each Loan Party authorizing the execution, delivery and performance of the Credit Agreement, amendments to the Credit Agreement and any fees required related Loan Documents previously delivered to the Administrative Agent 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 Ninth Amendment or any other document delivered in connection with herewith on behalf of each Loan Party;
SECTION 2.5 No Default or Event of Default has occurred and is continuing on the Ninth Amendment Effective Date both before and immediately after giving effect to the transactions contemplated hereby;
SECTION 2.6 The representations and warranties of the Borrower and each of the Guarantors set forth in Article III of this Ninth Amendment in Dollars are true and correct;
SECTION 2.7 The Borrower shall have paid (or shall have caused to be paid) to the Administrative Agent, for the account of each Lender (other than a Defaulting Consenting Revolving Lender) , all fees due and payable to the Consenting Revolving Lenders pursuant to that has returned an executed signature page to this Amendment to certain Fee Letter, dated as of the date hereof, between the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 and the Borrower;
SECTION 2.8 The Borrower shall have paid any outstanding Total Revolving Extensions of Credit and any interest accrued therefrom such that the Total Revolving Extensions of Credit shall not exceed the Total Revolving Credit Commitments (the “Consent Deadline” and each as reduced by such Lender, a “Consenting Lender”RCF Reduction).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (B&G Foods, Inc.)
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (on the date of satisfaction or waiver of such conditions being referred to herein as (the “Amendment No. 1 Effective Date”):) on which:
(a) The Administrative Agent (or its counsel) shall have received from (i) the Additional Term B Lenders, (ii) the Administrative Agent, (iii) the Borrower, (iv) Holdings and (v) each Revolving Lender, a counterpart of this Amendment signed on behalf of such party (it being understood that each Person signing this Amendment as a Revolving Lender that was not a Revolving Lender prior to the Amendment No. 1 Effective Date, shall without further action, on the Amendment No. 1 Effective Date, become party to the Credit Agreement as a Revolving Lender, with all the rights and obligations of a Revolving Lender provided therein). The Administrative Agent (or its counsel) shall have received from each Lender with a Term B Commitment a duly executed counterpart Consent. By delivering a signature page of to this Amendment by the BorrowerNo. 1, each of the Borrower’s subsidiaries listed Revolving Lender hereby agrees that its Revolving Loan Commitment in effect on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral AgentAmendment No. 1 Effective Date is set forth on Schedule I-B to this Amendment.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” The Administrative Agent (or its counsel) shall have receivedreceived from the Borrower and the Guarantors, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender a duly executed by the Borrower Reaffirmation Agreement, substantially in substantially the form of Annex A Exhibit B attached hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by , counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent’s receipt of the following, ▇▇▇▇▇ Fargo Securitieseach executed by a Responsible Officer of the signing Loan Party, LLC each dated the Amendment No. 1 Effective Date (or, in the case of certificates of governmental officials, a recent date before the Amendment No. 1 Effective Date):
(1) 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 Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution capacity of this Amendment or otherwise required each Responsible Officer thereof authorized to be paid act as a Responsible Officer in connection with this Amendment; and
(2) such Organizational Documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, to or in the extent invoiced at least one Business Day prior to alternative, certifications that the date hereofOrganizational Documents of each Loan Party have not been amended since the Closing Date, and that such Organizational Documents or articles are in full force and effect, and a good standing or active status certificate for each Loan Party in its jurisdiction of its organization.
(he) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (Lenders and the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from all documentation and other information about the Borrower any fees Loan Parties required in connection with this Amendment in Dollars for under applicable “know your customer” and anti-money laundering rules and regulations, including the account of each Lender PATRIOT Act not less than three (other than a Defaulting Lender3) that has returned an executed signature page to this Amendment Business Days prior to the Administrative Agent Amendment No. 1 Effective Date to the extent such information has been requested at or least seven (7) calendar days prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.Amendment No. 1
Appears in 1 contract
Conditions to Effectiveness. This Amendment and the obligation of the Incremental Term Lender to make the Incremental Term Loans shall become effective only on the date hereof (such date, the “Second Incremental Term Loan Effective Date”) upon satisfaction (or, with respect to Sections 4(a)(ii), (iii) and (iv) only, waiver by the satisfaction or waiver in accordance with Section 10.01 Administrative Agent) of the Existing Credit Agreement each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):conditions:
(a) The Administrative Agent shall have received a duly the following, each of which shall be originals, facsimiles or copies in .pdf form by electronic mail (followed promptly by originals):
(A) the Borrower’s executed counterpart signature page of to this Amendment by and (B) the Borrower, each of the BorrowerIncremental Term Lender’s subsidiaries listed on the executed counterpart signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.page to this Amendment;
(bii) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable each Guarantor’s executed counterpart signature page to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned acknowledgment attached to the Borrower any Note held by it prior to the Amendment Effective Date.this Amendment;
(ciii) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an a customary opinion of from Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as ;
(iv) such certificates of good standing or status (to the extent that such concepts exist) from the applicable secretary of state (or equivalent authority) of the jurisdiction of organization of each Loan Party, a certificate of customary resolutions or other customary action of each Loan Party, a customary certificate of a Responsible Officer of each Loan Party and an incumbency certificate of each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party on the Second Incremental Term Loan Effective Date and reasonably satisfactory Date;
(v) a Loan Notice (without any representation therein as to the Administrative Agent.
(d) Each satisfaction of the conditions set forth in Section 4.02 of the Amended Credit Agreement) relating to the funding of the Incremental Term Loans on the Second Incremental Term Loan Effective Date;
(vi) copies of recent Uniform Commercial Code, tax and Restated intellectual property Lien searches and copies of judgment searches, in each case, in each jurisdiction reasonably requested by the Administrative Agent in respect of the Loan Parties;
(vii) a certificate from the chief financial officer of the Borrower attesting to the Solvency of the Borrower and its Restricted Subsidiaries, on a consolidated basis, on the Second Incremental Term Loan Effective Date after giving effect to the incurrence of the Incremental Term Loans; and
(viii) a certificate from the chief financial officer of the Borrower certifying that, on the Second Incremental Term Loan Effective Date after giving Pro Forma Effect to the incurrence of the Incremental Term Loans, the Total Net First Lien Leverage Ratio will be less than or equal to 3.50 to 1.00.
(b) Immediately before and immediately after giving effect to this Amendment, no Event of Default shall exist.
(c) Immediately before and immediately after giving effect to this Amendment, the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement or in any other Loan Document shall be satisfied true and correct in all material respects; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects.
(d) The Borrower shall pay a closing fee to the Amendment Incremental Term Lender on the Second Incremental Term Loan Effective Date as fee compensation for such Incremental Term Lender’s Incremental Term Commitment in an amount equal to 0.50% of the aggregate principal amount of the Incremental Term Loans made by the Incremental Term Lender on the Second Incremental Term Loan Effective Date, payable to the Incremental Term Lender out of the proceeds of the Incremental Term Loans on the Second Incremental Term Loan Effective Date.
(e) The Administrative Agent shall have received a certificate payment of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid or reimbursed by any Loan Party under or in connection with this Amendment, including those expenses set forth in Section 12 hereof, in each case, to the extent invoiced at least one Business Day in reasonable detail prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (. Other than the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as conditions set forth in this Section 4, there are no other conditions (express or implied) to the preceding clause (a)Second Incremental Term Loan Effective Date. For purposes of determining compliance with the conditions specified in this Section 4, the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not Lender shall be greater than $500.0 million on a pro forma basis.
(j) The deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Incremental Term Lender under this Amendment unless the Administrative Agent shall have received notice from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Incremental Term Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment prior to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)Second Incremental Term Loan Effective Date specifying its objection thereto.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Incremental Term Loan Amendment (MACOM Technology Solutions Holdings, Inc.)
Conditions to Effectiveness. This Amendment The obligations of the New Lenders to provide its New Commitments and make the New Loan, as provided in Section 1 hereof, and the amendments, waivers and release set forth in Sections 2 and 3 hereof, shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 on and as of the Existing Credit Agreement of first Business Day on which the following conditions precedent shall have been satisfied, or shall have been waived by the New Lender and the Administrative Agent (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(a) The Administrative Agent shall have received a duly executed counterpart signature page counterparts of this Amendment Amendment, executed by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent Borrower and the Collateral AgentNew Lender.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as counterparts of the Amendment Effective Date attached consent and reasonably satisfactory to affirmation (the Administrative Agent“Consent”) executed by the Borrower and each of the Guarantors.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(ec) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, dated as of the Effective Date, (i) certifying and attaching the resolutions adopted by the Borrower approving or consenting to the execution and delivery of this Amendment and the Consent by the Borrower and the performance by the Borrower of its obligations hereunder and thereunder, under the Amended Credit Agreement and under the other Loan Documents to which it is a party (as amended hereby), and the making of the New Loans (or such other evidence of authority as may be acceptable to the Administrative Agent and the New Lender, in each case in such Person’s sole discretion); (ii) attaching a good standing certificate from the applicable Governmental Authority of the Borrower’s jurisdiction of incorporation, issued as of a recent date; (iii) certifying the conditions precedent set forth names and true signatures of the officers of the Borrower authorized to sign this Amendment and the Consent, and any other documents to be delivered by the Borrower pursuant thereto; (iv) attaching a copy of the charter or other constitutive document of the Borrower and each amendment thereto, certified as of a recent date by the applicable Governmental Authority of the Borrower’s jurisdiction of incorporation, organization or formation, as being a true and correct copy thereof; and (v) attaching and certifying a true and correct copy of the by-laws of the Borrower as in Sections 4.02(aeffect on the Effective Date.
(d) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, dated as of the Effective Date, certifying that, immediately before and immediately after giving effect to this Amendment and the making of the New Loans and to the application of the proceeds therefrom, (i) the Borrower would be in pro forma compliance with the requirements of Section 5.04 of the Credit Agreement and (ii) the Borrower is in compliance with the requirements of clauses (h) and (bi) of the Amended and Restated Credit Agreement this Section 4.
(e) The Administrative Agent shall have been satisfied on received all deeds, conveyances, security agreement, mortgages, assignments, estoppel certificates, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments, or any amendment or modification of any thereof (if any), as of the Amendment Administrative Agent shall have requested prior to the Effective DateDate in order to reflect such the New Loans.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid evidence that all reasonable fees and documented out-of-pocket costs, fees and expenses of the Administrative Agent (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by counsel to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, Agent invoiced to the extent invoiced Borrower at least one Business Day prior to the date hereofEffective Date) owed by the Borrower in connection with this Amendment shall have been paid, and that concurrently with the occurrence of the Effective Date, without duplication, the Existing Loans (together with all accrued and unpaid interest thereon (whether or not due and payable), and any other amounts then due and payable with respect thereto under Section 9.04(d) of the Credit Agreement) will be, or have been, repaid in full.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(jg) The Administrative Agent shall have received from all documentation and other information reasonably requested in writing at least five Business Days prior to the Borrower any fees required in connection with date of this Amendment in Dollars for order to allow it to comply with applicable “know your customer” and anti‑money laundering rules and regulations, including without limitation, the account PATRIOT ACT.
(h) The representations and warranties contained in Section 5 below, in Article IV of each Lender the Credit Agreement, and in the other Loan Documents shall be true and correct in all material respects (other than a Defaulting Lenderprovided, that any representation or warranty that is already qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects) that has returned an executed signature page on and as of the Effective Date, immediately before and immediately after giving effect to this Amendment and the making of the New Loans and to the Administrative Agent at application of the proceeds therefrom, as though made on and as of such date, other than any such representations or prior warranties that, by their terms, refer to 12:00 p.m.a specific date other than the Effective Date, New York City time on September 24in which case such representations or warranties were true and correct in all material respects (provided, 2010 (the that any representation and warranty that is qualified as to “Consent Deadlinemateriality”, “Material Adverse Effect” or similar language were true and each correct in all respects) as of such Lender, a “Consenting Lender”)specific date.
(ki) Each prepayment On and as of the Term B-2 Effective Date, immediately before and immediately after giving effect to this Amendment and the making of the New Loans pursuant to Section VII(h)(b) shall be allocated and to the Borrower for purposes application of the proceeds therefrom, no Default or Event of Default has occurred and is continuing, or would arise as a result thereof. This Amendment is subject to the provisions of Section 2.05(a)(i) 9.01 of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Senior Secured Term Facility Credit Agreement (Chemtura CORP)
Conditions to Effectiveness. This First Amendment shall become not be effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement until each of the following conditions (precedent have been fulfilled to the date satisfaction of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):Lender:
(a) The Administrative Agent the Lender shall have received a this First Amendment duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.parties thereto;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” the Loan Parties shall have received, if requested by it, one or more replacement Notes payable paid a closing fee to the order Lender in the amount of $75,000.00 (with such Term B-5 Lender duly executed by fee described in this paragraph being fully earned as of the Borrower in substantially the form of Annex A heretoFirst Amendment Effective Date, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender and no portion thereof shall have be refunded or returned to the Borrower Loan Parties under any Note held by it prior to the Amendment Effective Date.circumstances);
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower Parties shall have paid in full all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. invoiced Credit Party Expenses in connection with the preparation, negotiation execution, delivery and execution administration of this First Amendment or otherwise required and the other instruments and documents to be paid delivered hereunder (with such fees and expenses described in this paragraph being fully earned as of the First Amendment Effective Date, and no portion thereof shall be refunded or returned to the Loan Parties under any circumstances);
(d) the Lender shall have received a secretary’s certificate from each of the Loan Parties certifying the recent passage and continued effectiveness of resolutions from the Loan Parties approving the transactions contemplated by this First Amendment and the incumbency of the officers executing this First Amendment and the documents delivered in connection with therewith, in each case in form and substance satisfactory to the Lender;
(e) the Lender shall have received and reviewed lien search results for the jurisdiction of incorporation and organization of each of the Loan Parties and judgment search results for the jurisdiction of the chief executive office of each of the Loan Parties, which search results shall be in form and substance reasonably satisfactory to the Lender;
(f) the Lender shall have received duly executed opinions, in each case addressed to the Lender, of counsel to the Loan Parties addressing such matters as the Lender shall reasonably request;
(g) after giving effect to this First Amendment, to the extent invoiced at least one Business Day prior to the date hereof.no Default or Event of Default shall have occurred and be continuing; and
(h) The Borrower all action on the part of the Loan Parties necessary for the valid execution, delivery and performance by the Loan Parties of this First Amendment shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) been duly and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans)effectively taken.
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment The effectiveness of this Agreement shall become effective only upon be subject to the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of on which all such conditions being referred to herein as are satisfied or waived, the “First Amendment Effective Date”):
(a) The Administrative Agent shall have received appropriate financing statements on Form UCC-1 duly filed in such office or offices as may be necessary or, in the opinion of the Agent, desirable to perfect the Agent’s Liens in and to the Collateral of the New Loan Parties, and the Agent shall have received searches reflecting the filing of all such financing statements;
(b) The Agent shall have received each of the following documents, each in form and substance satisfactory to the Agent, duly executed and delivered, and each such document shall be in full force and effect:
(i) this Agreement;
(ii) a request for Borrowing of the First Amendment Term Loan pursuant to the requirements of Section 2.3(a) of the Credit Agreement;
(iii) an amendment to the Second Lien Credit Agreement (the “Second Lien Amendment”);
(iv) an amendment to the Intercreditor Agreement;
(v) a joinder to the Guaranty and Security Agreement executed by each New Loan Party;
(vi) a joinder to the Intercompany Subordination Agreement executed by each New Loan Party;
(vii) a pledged interests addendum that pledges the Pledged Interests (as defined in the Guaranty and Security Agreement), executed by the Borrower or any other applicable Grantor;
(viii) the Bridge Loan Agreement;
(ix) the Bridge Subordination Agreement;
(x) a term loan note evidencing the First Amendment Term Loan;
(xi) a payoff letter evidencing that all Indebtedness and obligations of the New Loan Parties and their Subsidiaries, and the Liens securing the same, have been repaid and discharged in full;
(xii) a borrower information certificate with respect to each New Loan Party; and
(xiii) a Perfection Certificate with respect to each New Loan Party;
(c) The Agent shall have received a duly executed counterpart signature page certificate from a responsible officer of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent form and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably substance satisfactory to the Administrative Agent.
, (di) Each certifying that, after giving effect to this Agreement, each of the conditions set forth in Section 4.02 the definition of “Permitted Acquisition” in the Credit Agreement has been satisfied, (ii) certifying to and attaching (I) a duly executed copy of the Amended Clearwater Acquisition Agreement (including all schedules, exhibits and Restated Credit Agreement shall appendices thereto, in the case of such schedules, exhibits and appendices thereto, subject to any agreements, restrictions or limitations on disclosure or related to confidentiality amongst the parties to such acquisition) pursuant to which the Clearwater Acquisition is to be satisfied as consummated and (II) true, correct and complete executed copies of the Second Lien Amendment Effective Date.and the Bridge Loan Agreement, and (iii) certifying that each Loan Party (after giving effect to the Clearwater Acquisition) is Solvent;
(d) The Agent shall have received evidence, in form and substance satisfactory to the Agent, that the Clearwater Acquisition shall have been, or shall substantially concurrently with the funding of the First Amendment Term Loan, be consummated in accordance with the terms of the Clearwater Acquisition Agreement;
(e) The Administrative Agent shall have received a certificate from a responsible officer of each Loan Party (other than the Dissolving Entities):
(i) attesting to the resolutions of such Loan Party’s board of directors authorizing its execution, delivery, and performance of this Agreement;
(ii) authorizing specific officers of such Loan Party to execute the same, attesting to the incumbency and signatures of such specific officers of such Loan Party;
(iii) attesting to copies of each Loan Party’s Governing Documents, as amended, modified, or supplemented to the date hereof, which Governing Documents shall be (A) certified by the responsible officer of such Loan Party, and (B) with respect to Governing Documents that are charter documents, certified as of a Responsible Officer recent date (not more than 30 days prior to the date hereof) by the appropriate governmental official;
(iv) attesting to certificates of status with respect to each Loan Party, dated within 10 days of the Borrowerdate hereof, certifying such certificates to be issued by the conditions precedent set forth in Sections 4.02(a) and (b) appropriate officer of the Amended and Restated Credit Agreement jurisdiction of organization of such Loan Party, which certificates shall have been satisfied on and as indicate that such Loan Party is in good standing in such jurisdiction; and
(v) attesting to certificates of status with respect to each Loan Party, each dated within 30 days of the Amendment Effective Date.date hereof, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Loan Party) in which such Loan Party’s failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Loan Party is in good standing in such jurisdictions;
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect opinions of the Loan Parties’ (other than the Dissolving Entities’) counsel, in form and substance satisfactory to each Mortgaged Propertythe Agent;
(g) The Agent shall have received pro forma financial statements of Borrower and its Subsidiaries after giving effect to the consummation of the Clearwater Acquisition, in form and substance satisfactory to the Agent;
(h) The Agent shall have received a flow of funds memorandum, which shall include a statement of (i) sources of all funds to be used by the Loan Parties to consummate the Clearwater Acquisition and to pay all transaction expenses incurred in connection therewith and (ii) sources and uses of the First Amendment Term Loan and the Bridge Loan, in form and substance satisfactory to the Agent;
(i) The Agent shall have completed its business and legal due diligence, including (i) review of the Borrower’s and its Subsidiaries’ (including the New Loan Parties’) books and records and verification of the Borrower’s representations and warranties to Agent and the Lenders, the results of which shall be satisfactory to the Agent, (ii) satisfactory review by the Agent of all contracts with Federal, state, municipal and governmental agencies, (iii) a review of the Borrower’s and its Subsidiaries’ (including the New Loan Parties’) insurance and (iv) a review of (A) a quality of earnings report of the Borrower and its Subsidiaries (including the New Loan Parties), (B) all Material Contracts, and (C) all surety bonds, licenses and permits, each of which shall be satisfactory to the Agent;
(j) The Agent shall have received completed reference and background checks with respect to the Borrower’s senior management, the results of which are satisfactory to the Agent in its sole discretion;
(k) Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) Lender Group Expenses incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparationtransactions contemplated by this Agreement and the other Loan Documents;
(l) The Lenders shall have received in consideration for the entry into this Agreement, negotiation a non-refundable closing fee equal to $260,000;
(m) Borrower and execution each of this Amendment its Subsidiaries shall have received all licenses, approvals or otherwise evidence of other actions required to be paid by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of this Amendment, to Agreement or with the extent invoiced at least one Business Day prior to consummation of the date hereof.transactions contemplated hereby;
(hn) The Borrower representations and warranties of the Loan Parties contained in Section 5 hereof shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes be true and correct in all material respects (the “New Senior Notes”) except that such materiality qualifier shall not be applicable to any representations and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth warranties that already are qualified or modified by materiality in the preceding clause (a), text thereof) on and as of the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).First Amendment Effective Date;
(io) After giving effect to (i) the prepayment First Amendment Term Loan, the payment of Term Loans from the net proceeds all fees and expenses required to be paid by Borrower and application of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit AgreementAvailability Block, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not Excess Availability shall be greater than or equal to $500.0 million on a pro forma basis.6,000,000;
(jp) The Administrative Agent Since December 31, 2017, there shall not have occurred a Material Adverse Effect;
(q) No Default or Event of Default shall have received occurred and be continuing as of the First Amendment Effective Date, nor shall either result from the Borrower any fees required making of the First Amendment Term Loan or after giving effect to the Clearwater Acquisition and the other transactions contemplated to occur on the date hereof; and
(r) All other documents and legal matters in connection with the transactions contemplated by this Amendment Agreement and the other Loan Documents shall have been delivered, executed, or recorded and shall be in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment form and substance satisfactory to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)Agent.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Nuverra Environmental Solutions, Inc.)
Conditions to Effectiveness. This Amendment Agreement shall become be effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as effectiveness, the “Amendment No. 1 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received from (i) each Borrower a duly executed counterpart signature page of this Amendment by the Agreement signed on behalf of such Borrower, (ii) each other Credit Party a reaffirmation in the form of Exhibit A hereto (the Borrower’s subsidiaries listed on “Reaffirmation”) and (ii) the signature pages hereto, Lenders constituting at least the Required Lenders, Term B-2 Revolving Lenders holding a majority consent to this Agreement in principal amount the form of Term B-2 Loans, the Administrative Agent and the Collateral Agent.Exhibit B hereto (a “Consent”);
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, U.S. Borrower certifying that the conditions precedent set forth representations in Sections 4.02(a) Section 4 of this Agreement are true and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.correct;
(fc) The the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect an opinion of counsel to each Mortgaged Propertythe Borrowers in form and substance reasonably satisfactory to the Administrative Agent;
(gd) The Borrower the Administrative Agent shall have paid received, for the account of each Consenting Lender (as defined below), its Consent Fee (as defined below);
(e) the Administrative Agent and its affiliates shall have received all fees payable thereto on or prior to the Amendment No. 1 Effective Date and, to the extent invoiced at least three Business Days prior to the Amendment No. 1 Effective Date, reimbursement or payment of all reasonable fees and documented out-of-pocket expenses (including the reasonable legal fees and expenses documented fees, charges and disbursements of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by LLP and local counsels to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise ) required to be reimbursed or paid in connection with this Amendment, to by the extent invoiced at least one Business Day Credit Parties hereunder or under any Loan Document on or prior to the date hereof.Amendment No. 1 Effective Date; and
(hf) The Borrower the Administrative Agent and the Revolving Lenders shall have issued received at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, three Business Days prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
Amendment No. 1 Effective Date (i) After giving effect to (i) all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the prepayment of Term Loans from the net proceeds of the New Senior Notes Patriot Act, and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans a beneficial ownership certification for each Borrower that qualifies as contemplated by the Amended and Restated Credit Agreementa “legal entity customer” under 31 C.F.R. §1010.230, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(jin each case under this Section 3(f) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent extent requested at or least five Business Days prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.Amendment No. 1
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
May 22, 2003, when (a) The the Administrative Agent shall have received (i) counterparts of this Amendment that, when taken together, bear the signatures of the Borrowers, the Subsidiary Loan Parties, the Required Lenders, Lenders holding a majority in interest of the outstanding Tranche B Term Loans and Lenders holding a majority in interest of the outstanding Mexico Term Loans and (ii) the Amendment Fee, (b) the representations and warranties set forth in Section 19 hereof are true and correct (as set forth on an officer's certificate delivered to the Administrative Agent), (c) the Intercreditor Agreement shall have been executed and delivered by all parties thereto and shall be in full force and effect, (d) the terms and conditions of the Senior Second Lien Notes and the other Senior Second Lien Note Documents (including terms and conditions relating to payment, covenants, events of default, remedies and maturity) shall be reasonably satisfactory to the Administrative Agent and the Syndication Agent, (e) the Administrative Agent shall have received a duly executed counterpart signature page favorable written opinion (addressed to the Administrative Agent, the Syndication Agent and the Lenders) of this Amendment by counsel to the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent form and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and substance reasonably satisfactory to the Administrative Agent.
, with respect to this Amendment, the Subsidiary Borrower and the Intercreditor Agreement, (df) Each the Equity Purchaser shall have executed and delivered to the Administrative Agent a written consent of the conditions set forth Equity Purchaser to this Amendment, in Section 4.02 of form and substance reasonably satisfactory to the Amended Administrative Agent and Restated Credit Agreement the Syndication Agent, and such written consent shall be satisfied as of in full force and effect, and the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate favorable written opinion (addressed to the Administrative Agent, the Syndication Agent and the Lenders) of a Responsible Officer counsel to the Equity Purchaser, in form and substance reasonably satisfactory to the Administrative Agent, with respect to such written consent, (g) the gross cash proceeds from the issuance of the BorrowerSenior Second Lien Notes shall not be less than $250,000,000 (or, certifying if the conditions precedent set forth in Sections 4.02(aSenior Second Lien Notes are issued at a discount that is a market discount at the time of issuance thereof, $250,000,000 less the amount of such discount) and (bh) of all fees and expenses required to be paid or reimbursed by the Amended and Restated Borrowers pursuant hereto or the Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid or otherwise, including all reasonable fees and out-of-pocket expenses (including the reasonable legal invoiced fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment counsel to the Administrative Agent at and the Syndication Agent, shall have been paid or prior to 12:00 p.m.reimbursed, New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)as applicable.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment The amendments provided in Section 1 hereof shall become effective only upon at the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions date and time (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):), which must be on or prior to February 5, 2015, that:
(a) The Administrative the Agent shall have received a duly one or more counterparts of (i) this Amendment, executed counterpart signature page of this Amendment and delivered by the BorrowerBorrowers, the Requisite Lenders, each Incremental Lender and the Agent, and (ii) the Consent and Reaffirmation in the form of the Borrower’s subsidiaries listed on the signature pages Exhibit I hereto, executed and delivered by the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.Guarantors;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” the Agent shall have received, if requested by it, one received in immediately available funds and without offset or more replacement Notes payable deduction of any kind for the pro rata benefit of each Incremental Lender a non-refundable fee in an amount equal to 0.25% of the order amount of the increase in the Revolving Loan Commitment of such Term B-5 Incremental Lender duly executed by the Borrower in substantially the form of as reflected on Annex A J attached hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.;
(c) The Administrative Agent each Incremental Lender shall have received such opinions as may reasonably be a promissory note to evidence its Revolving Credit Commitment if requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as such Incremental Lender (which notes shall constitute Notes for purposes of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.Credit Agreement);
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer the chief financial officer of the BorrowerBorrower Representative, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and dated as of the Amendment Effective Date., certifying that, after giving pro forma effect to all Revolving Loans that could be incurred under the Credit Agreement, after giving effect to Amendment No. 1, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Credit Parties, taken as a whole, shall be Solvent;
(fe) The Administrative the Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect certificate of the Secretary or an Assistant Secretary of each Credit Party, in form and substance satisfactory to each Mortgaged Propertythe Agent, (i) certifying the resolutions of such Credit Party’s board of directors (or equivalent governing body) approving and authorizing Amendment No. 1, (ii) certifying that none of the organizational documents of such Credit Party delivered to the Agent pursuant to the Credit Agreement on the Closing Date have been modified or altered in any way (or, if modifications have occurred, certifying new copies of such organizational documents) and (iii) certifying the incumbency of the officers of such Credit Party;
(f) the Agent shall have received an opinion of counsel to the Borrowers in form and substance and from counsel reasonably satisfactory to the Agent, addressed to the Agent and the Incremental Lenders and covering such matters as the Agent may reasonably request; and
(g) The Borrower there shall have paid all reasonable fees and out-of-pocket expenses be no continuing Default or Event of Default (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loansthe amendments contemplated by this Amendment).
(i) After giving effect to (i) , and the prepayment of Term Loans from the net proceeds representations and warranties of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required Borrowers contained in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended true and Restated Credit Agreementcorrect in all material respects.
Appears in 1 contract
Conditions to Effectiveness. This Amendment No. 2 shall become effective on the Amendment Effective Date only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions precedent:
A. The Borrower, the Administrative Agent, TD Bank, N.A. and the New Term Lenders and Required Lenders (as defined in the date Existing Credit Agreement) shall have indicated their consent hereto by the execution and delivery of satisfaction or waiver of such conditions being referred the signature pages hereof to herein as the “Amendment Effective Date”):Administrative Agent.
(a) B. The Administrative Agent shall have received a duly executed counterpart signature page secretary’s certificate from the Borrower (i) either confirming that there have been no changes to its organizational documents since January 2, 2024, or if there have been changes to the Borrower’s organizational documents since such date, certifying as to such changes, and (ii) certifying as to authorization of this Amendment by the BorrowerNo. 2, each good standing of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount Borrower and incumbency of Term B-2 Loans, the Administrative Agent officers with respect to this Amendment No. 2 and the Collateral Agent.transactions contemplated hereby;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) C. The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and documented out-of-pocket costs and expenses for which the Borrower is responsible pursuant to Section 10.5 of the Credit Agreement and for which invoices have been presented (including the reasonable legal fees and expenses of legal counsel to the Administrative Agent for which the Borrower agrees it is responsible pursuant to Section 10.5 of the Credit Agreement), incurred in connection with this Amendment No. 2;
D. Execution and delivery to the Administrative Agent by the Borrower in favor of each New Term Lender, if requested by such New Term Lender, of a Term Loan Note in an amount equal to its Incremental Commitment hereunder;
E. Delivery to the Administrative Agent by ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇▇ LLP) incurred by , as counsel to the Borrower, of an opinion addressed to the New Term Lenders and the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with ;
F. Payment by the preparation, negotiation and execution Borrower of this Amendment or otherwise required to be paid in connection with this Amendment, any agreed upon compensation to the extent invoiced at least one Business Day prior to Lead Arranger, the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount New Term Lenders and the Administrative Agent due and payable on the Amendment Effective Date in respect of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans Commitments as set forth in a separate fee letter;
G. Each of the preceding clause representations and warranties made by the Borrower in or pursuant to the Loan Documents are true and correct in all material respects (a)or, in the Term B-2 Loans on a pro rata basis case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, true and correct (before after giving effect to extensions any qualification therein) in all respects) on and as of Term B-2 Loans the Amendment Effective Date as if made on and as of such date except for representations and warranties expressly stated to Term B-5 Loans).relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date;
(i) After No Default or Event of Default has occurred and is continuing on the Amendment Effective Date or after giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes thereto and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from a certificate of the Borrower any fees demonstrating compliance with each financial covenant set forth in paragraphs (a) through (f) of Section 7.1 of the Credit Agreement as if the ratio or amount referred to therein were to be calculated as of the most recent Test Period as to which a compliance certificate has been delivered pursuant to Section 6.2(b) of the Credit Agreement after giving pro forma effect to the incurrence of Indebtedness under the New Term Loans on the Amendment Effective Date, and the use of proceeds thereof; and
I. The Administrative Agent and the New Term Lenders shall have received all documentation and other information regarding the Borrowers reasonably requested by them of the Borrowers in writing at least 10 Business Days prior to the Amendment Effective Date that is required in connection order to comply with this Amendment in Dollars for their ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the account USA PATRIOT Act. Upon satisfaction of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the foregoing condition, the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated deliver written notice to the Borrower for purposes of Section 2.05(a)(i) and the New Term Lenders of the Amended and Restated Credit AgreementAmendment Effective Date.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 The agreement of Prudential and the Existing Credit Noteholders to amend and restate the Existing Agreement in its entirety as provided herein is subject to the satisfaction, on or before the Effective Date, of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):conditions:
(a3A(1) The Administrative Agent Prudential shall have received a the following documents, each duly executed counterpart signature page of this Amendment and delivered by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority party or parties thereto and in principal amount of Term B-2 Loans, the Administrative Agent form and the Collateral Agent.substance satisfactory to Prudential:
(bi) Each Term Lender executing this Confirmation, Reaffirmation and Amendment as a “Term B-5 Lender” shall have receivedof Parent Guarantee Agreement, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date date hereof, executed by the Parent, Prudential and reasonably satisfactory the holders from time to time of the Administrative Agent.Shelf Notes, in the form of Exhibit D-1 hereto (the “Confirmation and Reaffirmation of Parent Guaranty”);
(dii) Each Confirmation, Reaffirmation and Amendment of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied Subsidiary Guarantee Agreement, dated as of the Amendment Effective Date.date hereof, executed by each of the Subsidiary Guarantors, Prudential and the holders from time to time of the Shelf Notes, in the form of Exhibit D-2 hereto (the “Confirmation and Reaffirmation of Subsidiary Guaranty”);
(eiii) The Administrative Agent shall have received a certificate Confirmation, Reaffirmation and Amendment of a Responsible Officer of the BorrowerSubordination Agreement, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and dated as of the Amendment Effective Date.
date hereof, by and among the Credit Parties, Prudential and each of the other holders from time to time of the Shelf Notes, in the form of Exhibit E hereto (f) The Administrative Agent shall have received a completed the “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged PropertyConfirmation and Reaffirmation of Subordination Agreement”);
(giv) The Borrower shall have paid all reasonable fees Confirmation, Reaffirmation and out-of-pocket expenses (including the reasonable legal fees Amendment of Pledge and expenses Security Agreement, dated as of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
, executed by the Obligors and the Subsidiary Guarantors (hother than any Subsidiary Guarantors that are limited liability companies or limited partnerships) The Borrower shall have issued at least $500.0 million aggregate principal amount in favor of senior unsecured notes the Security Trustee, as secured party, for the benefit of the holders from time to time of Shelf Notes, in the form of Exhibit F hereto (the “New Senior NotesConfirmation and Reaffirmation of Pledge Agreement”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).;
(i) After giving effect to (iv) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Intercreditor Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.;
(jvi) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m.Trust Agreement, New York City time on September 24dated as of the date hereof, 2010 executed by the Co-Issuers, the Purchasers, the Existing Noteholders and the Security Trustee; and
(the “Consent Deadline” vii) such other certificates, documents and each such Lender, a “Consenting Lender”agreements as Prudential may request (including those referenced in paragraph 3B).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Drew Industries Inc)
Conditions to Effectiveness. This Section 1.01 of this Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions on November 1, 2013 (the date of satisfaction or waiver of such conditions being referred to herein as the “Incremental Amendment Effective Date”):) when:
(a) The this Amendment shall have been executed and delivered by the Borrowers, the Loan Parties, each Incremental Term Lender party hereto and the Administrative Agent;
(b) the Administrative Agent shall have received copies of bring down personal property Lien, tax and judgment Lien searches received by the Company prior to the Incremental Amendment Effective Date, which shall not reveal the existence of any Liens on or security interest in Collateral of the Mortgaged Vessel Guarantors or any pledgor of Pledged Equity Interests other than (i) Permitted Liens or (ii) Liens as to which the Administrative Agent has received evidence satisfactory to it that the obligations secured by such Liens have been fully and finally discharged on or prior to the Incremental Amendment Effective Date;
(c) the Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Incremental Amendment Effective Date, in form and substance reasonably acceptable to the Administrative Agent, with appropriate insertions and attachments, including certified organizational authorizations, incumbency certifications, the certificate of incorporation or other similar Organizational Document of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and bylaws or other similar Organizational Document of each Loan Party certified by a Responsible Officer as being in full force and effect on the Incremental Amendment Effective Date and (ii) a good standing certificate (in respect of each jurisdiction where the “good standing” concept exists) for each Loan Party from its jurisdiction of organization;
(d) the Administrative Agent shall have received a duly executed counterpart signature page of Solvency Certificate, dated the Incremental Amendment Effective Date, which demonstrates that the Company and the Restricted Subsidiaries, on a consolidated basis, are and, after giving effect to this Amendment by and the Borrowerother transactions contemplated hereby, each of the Borrower’s subsidiaries listed on the signature pages heretowill be and will continue to be, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, Solvent;
(e) the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” Arrangers shall have received, if requested by it, one received all fees required to be paid on or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Incremental Amendment Effective Date., and all expenses required to be paid on the Incremental Amendment Effective Date for which reasonably detailed invoices have been presented (including the reasonable fees and expenses of legal counsel to the Administrative Agent and the Arrangers) to the Company at least one (1) Business Day prior to Incremental Amendment Effective Date;
(cf) The the Administrative Agent shall have received such opinions as may reasonably be requested by it, including an the executed legal opinion of Ropes (i) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇, LLP, New York special counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(dii) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative AgentP.C., ▇▇▇▇▇▇▇▇ Fargo SecuritiesIslands and Liberia counsel for the Loan Parties, LLC (iii) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ & Associates, Republic of Malta counsel for the Loan Parties and Deutsche Bank Securities Inc. (iv) Vives y Asociados, Republic of Panama counsel for the Loan Parties, each of which shall be in connection with the preparation, negotiation form and execution of this Amendment or otherwise required to be paid in connection with this Amendment, substance reasonably satisfactory to the extent invoiced at least one Business Day prior to the date hereof.Administrative Agent;
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (ig) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from a certificate of a Responsible Officer of the Borrower Company, dated the Incremental Amendment Effective Date, which certifies that (i) the conditions of making any fees required extension of credit under Section 4.2 of the Credit Agreement are satisfied as of the Incremental Amendment Effective Date, (ii) the representations and warranties in connection with Section 3.01 of this Amendment shall be true and correct in Dollars for all material respects as of the account date hereof and (iii) the conditions of making an Incremental Term Loan set forth in Section 2.19(a) of the Credit Agreement are satisfied as of the Incremental Amendment Effective Date;
(h) the Administrative Agent shall have received an amendment to each Lender (other than a Defaulting Lender) that has returned an executed signature page existing Ship Mortgage existing prior to this the Incremental Amendment Effective Date relating to the Existing Vessels, M/V Navios Joy and M/V Navios Harmony in form and substance reasonably satisfactory to the Administrative Agent at Agent, reflecting this Amendment and the transactions contemplated hereunder; and
(i) the Company shall have deposited into the Collateral Account the Additional Cash Collateral on or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.Incremental Amendment Effective Date;
Appears in 1 contract
Sources: Incremental Amendment
Conditions to Effectiveness. This Amendment (other than this Section 5, which shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 date hereof), each Refinancing Lender’s obligation to provide the Refinancing Term Loans and each party’s consent to the amendments contemplated herein to the Credit Agreement shall become effective as of the Existing Credit Agreement of date on which the following conditions are satisfied or waived (the date of satisfaction or waiver of such conditions being referred to herein as time, the “Amendment No. 1 Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received from Initial Holdings, Bidco, the Borrowers, each Refinancing Lender (which collectively constitute the Required Lenders) and all of the Revolving Lenders under the Credit Agreement either (i) a duly executed counterpart signature page of this Amendment by the Borrower, each signed on behalf of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, such party or (ii) written evidence satisfactory to the Administrative Agent and the Collateral Agent(which may include facsimile or other electronic transmission of a signed counterpart of this Amendment) that such party has signed a counterpart of this Amendment.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent (or its counsel) shall have received such opinions as may reasonably be requested by it, including an a written opinion of Ropes & ▇▇▇▇ LLP, New York counsel (addressed to the Loan PartiesAdministrative Agent, each Refinancing Lenders, Revolving Lenders and Issuing Banks and dated as of the Amendment No. 1 Effective Date and reasonably satisfactory Date) of each of (i) ▇▇▇▇▇ ▇▇▇▇▇ (Guernsey) LLP, as Guernsey law counsel to the Administrative Agent.
, (dii) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇, as Luxembourg law counsel to the ▇▇▇▇▇ Borrower, (iii) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ , LLP, as New York and Delaware law counsel to Initial Holdings, Bidco and the Borrowers and (iv) incurred by Milbank LLP, as English law counsel to the Administrative Agent, ▇▇▇▇▇ Fargo Securitiesin each case in form and substance reasonably satisfactory to the Administrative Agent. Each applicable party hereby requests such counsel deliver such opinion.
(c) The Administrative Agent (or its counsel) shall have received a certificate of Bidco dated as of the Amendment No. 1 Effective Date, LLC as to the matters set forth in paragraphs (f) and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution (g) of this Section and executed by any Responsible Officer of Bidco.
(d) The Administrative Agent (or its counsel) shall have received a certificate of each of Initial Holdings, Bidco and each Borrower, dated as of the Amendment No. 1 Effective Date, substantially in the form delivered to the Administrative Agent on the Effective Date or otherwise required in form and substance reasonably satisfactory to the Administrative Agent, executed by any Responsible Officer of such party and including or attaching the documents or certifications, as applicable, referred to in paragraph (e) of this Section.
(e) The Administrative Agent (or its counsel) shall have received a copy of (i) each Organizational Document of each of Initial Holdings, Bidco and each Borrower (or a written certification that such party’s Organizational Documents as most recently delivered to the Administrative Agent prior to the Amendment No. 1 Effective Date remain in full force and effect without modification or amendment since such delivery), (ii) signature and (as applicable) incumbency certificates of the Responsible Officers of each of Initial Holdings, Bidco and each Borrower executing the Amendment (or a written certification that such party’s signature and incumbency certificates as most recently delivered to the Administrative Agent prior to the Amendment No. 1 Effective Date remain true and correct), and (iii) copies of resolutions of the board of directors or managers, shareholders, partners, and/or similar governing bodies of each of Initial Holdings, Bidco and each Borrower approving and authorizing the execution, delivery and performance of the Amendment, certified as of the Amendment No. 1 Effective Date by a secretary, an assistant secretary or a Responsible Officer of such party as being in full force and effect without modification or amendment.
(f) The representations and warranties of each Loan Party set forth in the Loan Documents shall be paid true and correct in connection with this Amendmentall material respects on and as of the Amendment No. 1 Effective Date; provided that, in each case, to the extent invoiced at least one Business Day prior that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the Amendment No. 1 Effective Date or on such earlier date, as the case may be.
(g) At the time of and immediately after giving effect to the date hereofRefinancing Term Loans, no Default or Event of Default shall have occurred and be continuing.
(h) The Borrower Administrative Agent and the Arrangers shall have issued received, at least $500.0 million aggregate principal amount of senior unsecured notes one (1) Business Days prior to the “New Senior Notes”) and used the net proceeds thereof to prepay (a) firstAmendment No. 1 Effective Date, all Incremental Term B-3 Loans, documentation and other information about the Borrowers as has been reasonably requested in writing at least three (3) Business Days prior to repayment of Term B-2 Loans the Amendment No. 1 Effective Date by the Administrative Agent or the Arrangers that is required by regulatory authorities under applicable “know your customer” and (b) secondanti-money laundering rules and regulations, after prepayment of Incremental Term B-3 Loans as set forth in including without limitation the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans)USA PATRIOT Act.
(i) After giving effect The Administrative Agent shall have received a Borrowing Request with respect to (i) the prepayment of Refinancing Term Loans from not later than 12:00 p.m. noon, New York City time, one (1) Business Day before the net proceeds Amendment No. 1 Effective Date and otherwise in accordance with the requirements of Section 2.03 of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent or the Arrangers, as applicable, shall have received from the Borrower any all fees required and reasonable, documented and invoiced out-of-pocket expenses previously agreed in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to writing by the Administrative Agent or the Arrangers, as applicable, and the Borrowers to be due and payable on the Amendment No. 1 Effective Date to the extent invoiced at or least one (1) Business Day prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)Amendment No. 1 Effective Date.
(k) Each prepayment The Borrowers shall have paid to the Administrative Agent for the ratable account of the Lenders holding Initial Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to all accrued and unpaid interest on such Initial Term Loans to, but not including, the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.Amendment No. 1
Appears in 1 contract
Sources: Credit Agreement (Viasat Inc)
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 The agreement of Prudential to amend and restate the Existing Credit Agreement in its entirety as provided herein is subject to the satisfaction, on or before the Effective Date, of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):conditions:
(a3A(1) The Administrative Agent Prudential shall have received a the following documents, each duly executed counterpart signature page of this Amendment and delivered by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority party or parties thereto and in principal amount of Term B-2 Loans, the Administrative Agent form and the Collateral Agent.substance satisfactory to Prudential:
(bi) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have receivedAmended and Restated Parent Guarantee Agreement, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date date hereof, executed by the Parent and reasonably satisfactory to Prudential, in the Administrative Agent.form of Exhibit D-1 hereto (the “Parent Guaranty”);
(dii) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied Subsidiary Guarantee Agreement, dated as of the Amendment Effective Date.date hereof, executed by each of the Subsidiary Guarantors and Prudential, in the form of Exhibit D-2 hereto (the “Subsidiary Guaranty”);
(eiii) The Administrative Agent shall have received Amended and Restated Subordination Agreement, dated as of the date hereof, by and among the Credit Parties and Prudential, in the form of Exhibit E hereto (the “Subordination Agreement”);
(iv) Amended and Restated Pledge and Security Agreement, dated as of the date hereof, executed by the Obligors and the Subsidiary Guarantors in favor of the Security Trustee, as secured party, for the benefit of the holders from time to time of Shelf Notes, in the form of Exhibit F hereto (the “Pledge Agreement”);
(v) the Intercreditor Agreement;
(vi) Amended and Restated Collateralized Trust Agreement, dated as of the date hereof, executed by the Issuer, Prudential and the Security Trustee;
(vii) a certificate second amendment to the Bank Credit Agreement, dated as of the date hereof, certified by a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) Issuer as being true and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and correct as of the Amendment Effective Date.; and
(fviii) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees such other certificates, documents and out-of-pocket expenses agreements as Prudential may request (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. those referenced in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loansparagraph 3B).
(i3A(2) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.[Intentionally Deleted]
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Drew Industries Inc)
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):first above written when and only when:
(a) The Administrative Agent shall have received a all of the following, at the Administrative Agent’s office:
(i) an original counterpart to this Amendment, duly executed counterpart signature page by all parties hereto;
(ii) satisfactory results of this Amendment by all applicable lien searches;
(iii) satisfactory evidence that the BorrowerBorrower and its Restricted Subsidiaries maintain insurance that is customary in the industry, each including without limitation the amount, types and terms and conditions of such insurance; and the Lenders shall have received certificates naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies to be maintained with respect to the properties of the Borrower and its subsidiaries forming part of the Lenders’ Collateral;
(iv) satisfactory opinions of counsel to the Borrower and the Guarantors addressed to the Lenders (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of the documents for the Original Agreement, as amended and no conflict with the terms of the Borrower’s subsidiaries listed on indentures) and of appropriate local counsel, if any, and such corporate resolutions, certificates and other documents as the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, shall reasonably require;
(v) satisfactory evidence that the Administrative Agent (on behalf of the Lenders) shall continue to have a valid and perfected first priority (subject to Permitted Liens) security interest in the Collateral Agent(or arrangements satisfactory to the Administrative Agent shall have been made to provide for such filings to be made to provide such security interest);
(vi) a duly completed Compliance Certificate signed by a Responsible Officer of the General Partner for the July 31, 2013 year-end audited financial statements; and
(vii) a certificate signed by a Responsible Officer of the General Partner certifying (A) that the conditions specified in Sections 4.02(a) and (b) of the Credit Agreement have been satisfied, and (B) that the conditions specified in Sections 3(b) and (c) below have been satisfied.
(b) Each Term Lender executing this Amendment as There shall not have occurred since July 31, 2013 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective DateMaterial Adverse Effect.
(c) The Administrative Agent There shall have received such opinions as may be no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel expected to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agenthave a Material Adverse Effect.
(d) Each of The Borrower shall have paid, in connection with the conditions set forth in Section 4.02 of Loan Documents, all recording, handling, legal, and other fees or payments required to be paid to the Amended and Restated Credit Agreement shall be satisfied as of Administrative Agent or any Lender pursuant to any Loan Documents for which an invoice has been received at least one business day before the Amendment Effective Datedate hereof.
(e) The Administrative Agent shall have received a certificate financial projections and inventory sales projections (reporting projected volumes of a Responsible Officer propane to be sold) with respect to the Borrower and the Guarantors for fiscal years 2014 through 2016, including balance sheets and statements of projected income and cash flow, in each case with pro forma adjustments for the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Datetransactions implied herein.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable All accrued interest, fees and out-of-pocket expenses (including other amounts payable under the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars Original Agreement for the account of each any Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to as defined in the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(bOriginal Agreement) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreementhave been paid.
Appears in 1 contract
Sources: Credit Agreement (Ferrellgas Partners Finance Corp)
Conditions to Effectiveness. This Amendment shall will become effective only on the Amendment Effective Date upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):conditions:
(a) The Administrative the Agent shall have received counterparts of this Amendment, executed and delivered by the Borrower, the Guarantors, the Agent and the Lenders;
(b) the Agent shall have received a duly executed counterpart signature page Revolving Note for each Lender that requests a Revolving Note substantially in the form of Exhibit 2.1(a) attached to the Credit Agreement in the principal amount of such Lender’s Revolving Loan Commitment as set forth on Schedule 3.1 attached hereto;
(c) the Agent shall have received a Swingline Note for the Swingline Lender substantially in the form of Exhibit 2.16 attached to the Credit Agreement in the principal amount of $50,000,000;
(d) the Agent shall have received a Term Note (as defined in Annex I hereto) for each Lender that requests a Term Note substantially in the form of Exhibit 2.1(b) attached hereto in the principal amount of each such Lender’s Term Loan Commitment (as defined in Annex I hereto) as set forth on Schedule 3.1 attached hereto;
(e) the representations and warranties of the Borrower and the Guarantors in Section 7 of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent shall be true and the Collateral Agent.correct;
(bf) Each Term Lender executing this Amendment as a “Term B-5 Lender” the Agent shall have received, if requested by itor shall concurrently receive, one or more replacement Notes payment of all fees payable in connection with this Amendment including, without limitation, the fees payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A heretopursuant to that certain Fee Letter dated November 19, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.2019;
(cg) The Administrative the Agent shall have received such opinions the following certificates of Borrower and, as may reasonably be requested by itappropriate, including the Guarantors:
(i) an opinion “Omnibus Certificate” of Ropes & ▇▇▇▇ LLPthe Secretary or Assistant Secretary of the Borrower and each Guarantor, New York counsel which shall (i) contain the names and signatures of the officers of the Borrower and each Guarantor authorized to execute Loan Documents, (ii) certify that there have been no changes to the charter documents or bylaws of the Borrower and each Guarantor previously delivered to the Agent (or, to the extent any such documents have changed, attach and certify to the truth, correctness and completeness of such documents) and (iii) attach and certify to the truth, correctness and completeness of a copy of resolutions duly adopted by the Board of Directors of the Borrower and each Guarantor and in full force and effect at the time this Amendment is entered into, authorizing the execution of this Amendment and the other Loan PartiesDocuments delivered or to be delivered in connection herewith and the consummation of the transactions contemplated herein and therein; and
(ii) a “Closing Certificate” of the chief financial officer of the Borrower, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
date of this Amendment, certifying that (dA) Each of the conditions set forth out in subsections (a) and (b) of Section 4.02 4.2 of the Amended and Restated Credit Agreement shall be have been satisfied as and (B) the financial information of the Amendment Effective Date.Borrower most recently delivered to the Agent pursuant to Section 6.2(b) of the Credit Agreement fairly present the Consolidated financial position of the Borrower for the periods covered thereby;
(eh) The Administrative the Agent shall have received a certificate of existence and good standing for the Borrower issued by the Secretary of State of Delaware, a Responsible Officer certificate of due qualification to do business for the Borrower issued by the Secretary of State of Texas and evidence that the Borrower, certifying ’s authority to transact business in the conditions precedent set forth in Sections 4.02(a) and (b) State of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.Texas is active;
(fi) The Administrative the Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect favorable opinion of (i) ▇▇▇▇▇▇▇▇▇ LLP, counsel for Restricted Persons, in form and substance reasonably satisfactory to each Mortgaged Property;
the Agent; and (gii) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securitiesin-house counsel for Restricted Persons, LLC in form and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, substance reasonably satisfactory to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.Agent;
(j) The Administrative the Agent shall have received from received, in form and substance reasonably satisfactory to the Agent, projections prepared by management of balance sheets, income statements and cashflow statements of the Borrower any fees required in connection with this Amendment in Dollars and its Subsidiaries for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m.Fiscal Years ending December 31, New York City time on September 242019 through December 31, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).2024; and
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) Borrower shall be allocated have delivered to the Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification (as defined in Annex I hereto) in relation to it (or a certification that the Borrower qualifies for purposes of Section 2.05(a)(i) of an express exclusion from the Amended and Restated Credit Agreement“legal entity customer” definition under the Beneficial Ownership Regulation (as defined in Annex I hereto)).
Appears in 1 contract
Conditions to Effectiveness. This Incremental Amendment No. 2 and the 2017 Rook Incremental Term B Loan Commitments shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement first date (such date, the “Incremental Amendment No. 2 Effective Date”) when each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):shall have been satisfied:
(a) The this Incremental Amendment No. 2 shall have been executed and delivered by the Borrower, each 2017 Rook Incremental Term B Lender and the Administrative Agent;
(b) that certain Fee Letter (the “Fee Letter”), dated as of the date hereof, regarding, inter alia, this Incremental Amendment No. 2, shall have been executed and delivered by the Borrower and each 2017 Rook Incremental Term B Lender;
(c) upon the effectiveness of this Incremental Amendment No. 2, the representations and warranties set forth in the following sections of the Credit Agreement shall be true and correct in all material respects: Section 5.2 (solely with respect to organizational existence of the Loan Parties), Section 5.3 (solely as it relates to (x) organizational power and authority of the Loan Parties to duly authorize, execute, deliver and perform this Incremental Amendment No. 2 and the other Loan Documents, (y) the due authorization, execution, delivery and enforceability of this Incremental Amendment No. 2 and the other Loan Documents and (z) no conflicts of this Incremental Amendment No. 2 or the other Loan Documents with the organizational documents of the Loan Parties), Section 5.7, Section 5.13 and Section 5.21(c);
(d) there shall be no Event of Default;
(e) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 6.22 of the Credit Agreement, recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b) of the Credit Agreement and assuming the 2017 Rook Incremental Term B Loan Commitments have been drawn in full;
(f) the Senior Secured Leverage Ratio shall not exceed 4.85:1.00, determined on a Pro Forma Basis after giving effect to the 2017 Rook Incremental Term B Loans (and assuming the 2017 Rook Incremental Term B Loans have been drawn in full) and any related transaction as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b) of the Credit Agreement;
(g) the Existing Shareholder Distribution shall be permitted under Section 6.18 of the Credit Agreement.
(h) the Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying (i) its compliance with clauses (c), (d), (e), (f) and (g) above, together with reasonably detailed calculations demonstrating compliance with clauses (e), (f) and (g) above, (ii) that the Weighted Average Life to Maturity of the 2017 Rook Incremental Term B Loans shall not be shorter than the Weighted Average Life to Maturity of the Initial Term B Loans then outstanding and (iii) that pursuant to Section 2.14(a)(B) of the Credit Agreement, the Borrower is in compliance, on a Pro Forma Basis with the financial covenants set forth in Section 6.22 of the Credit Agreement recomputed as of March 31, 2017;
(i) the Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed following:
(i) (x) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority or (y) a certificate of the Secretary, Assistant Secretary or Chief Financial Officer of each Loan Party confirming that there have been no changes or amendments to the organizational documents described in clause (x) since those delivered to the Administrative Agent on the signature pages heretoSecond Restatement Effective Date;
(ii) copies of resolutions of the board of directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of this Incremental Amendment No. 2 and any other Loan Documents executed in connection with this Incremental Amendment No. 2 to which it is a party, together with specimen signatures of the Required Lenderspersons authorized to execute such documents on each Loan Party’s behalf, Term B-2 Lenders holding all certified as of the Incremental Amendment No. 2 Effective Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment;
(iii) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;
(A) a majority in principal amount of Term B-2 Loans, favorable written opinion (addressed to the Administrative Agent and the Collateral Agent.
(bLenders) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ Sidley Austin LLP, New York special counsel to the Loan Parties, each dated as of the Amendment Effective Date Parties and reasonably satisfactory (B) a favorable written opinion (addressed to the Administrative Agent.
(d) Each of Agent and the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (bLenders) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, local counsel to Vantiv ISO, Inc. (f/k/a National Processing Company) incurred by in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(v) an executed solvency certificate signed on behalf of the Borrower, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. dated as of the Incremental Amendment No. 2 Effective Date substantially in connection with the preparation, negotiation and execution form of this Amendment or otherwise required to be paid in connection with this Amendment, Exhibit E to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, assuming the combined principal amount incurrence of the Term B-2 Loans and 2017 Rook Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basisB Loans.
(j) The the Administrative Agent shall have received from the Borrower any fees required a customary reaffirmation agreement, in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment form and substance reasonably satisfactory to the Administrative Agent at or prior to 12:00 p.m.Agent, New York City time on September 24, 2010 (executed by the “Consent Deadline” Borrower and each such Lender, a “Consenting Lender”).other Loan Party; and
(k) Each prepayment the Administrative Agent shall have received, no later than 3 Business Days in advance of the Term B-2 Loans pursuant to Section VII(h)(bIncremental Amendment No. 2 Effective Date (or such later date as agreed by the Administrative Agent) all documentation and other information about the Loan Parties as shall be allocated have been reasonably requested in writing at least five (5) Business Days prior to the Borrower for purposes Incremental Amendment No. 2 Effective Date by the Lenders through the Administrative Agent that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act. By its execution and delivery of Section 2.05(a)(i) of its signature page hereto, each 2017 Rook Incremental Term B Lender and the Amended Administrative Agent acknowledges and Restated Credit Agreementagrees that the Amendment No. 2 Effective Date has occurred on August 7, 2017.
Appears in 1 contract
Sources: Incremental Amendment (Vantiv, Inc.)
Conditions to Effectiveness. This Section 1 of this Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement all of the following conditions precedent (the date of satisfaction or waiver of such conditions being referred to herein as the “"Sixth Amendment Effective Date”"):
A. On or before the Sixth Amendment Effective Date, Borrower shall deliver to Lenders (aor to Managing Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender and its counsel) The Administrative Agent shall have received a duly executed counterpart signature page the following, each, unless otherwise noted, dated the Sixth Amendment Effective Date:
1. Resolutions of the Board of Directors of each Credit Party approving and authorizing the execution, delivery, and performance of this Amendment and the Loan Documents executed by the Borrowersuch Credit Party in connection herewith, each certified as of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority Sixth Amendment Effective Date by its corporate secretary or an assistant secretary as being in principal amount full force and effect without modification or amendment;
2. Signature and incumbency certificates of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender its officers executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to and the order of such Term B-5 Lender duly Loan Documents executed by the Borrower each Credit Party in substantially the form connection herewith;
3. Executed copies of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extendedthis Amendment; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.and
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 4. Executed copies of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the BorrowerSecurity Agreement, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Intercompany Note Security Agreement and executed originals of the Third Amendment Mortgages except the Third Amendment Mortgage relating to the Easton, Pennsylvania property and, except to the extent deemed necessary or advisable by the Collateral Agent, the requirements of subsection 6.14A(i) and (ii) shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;such Third Amendment Mortgage.
(g) The Borrower B. Lenders and their respective counsel shall have paid all reasonable fees received originally executed copies of one or more favorable written opinions of Skadden, Arps, Slate, Meagher & Flom (Illinois), counsel for Borrower, in form and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & s▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇e r▇▇▇▇▇ Fargo Securitiesnably satisfactory to Managing Agent and its counsel, LLC dated as of the Sixth Amendment Effective Date and Deutsche Bank Securities Inc. setting forth substantially the matters in the opinions designated in Annex V to this Amendment, with respect to the enforceability of this Agreement (as hereinafter defined) and as to such other matters as Managing Agent acting on behalf of Lenders may reasonably request.
C. On or before the Sixth Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the preparationtransactions contemplated hereby and all documents incidental thereto not previously found acceptable by Managing Agent, negotiation acting on behalf of Lenders, and execution its counsel shall be satisfactory in form and substance to Managing Agent and such counsel, and Managing Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Managing Agent may reasonably request.
D. On or before the Sixth Amendment Effective Date, Managing Agent and Requisite Lenders shall have delivered to Managing Agent an executed original or telefacsimile of a counterpart of this Amendment or otherwise required to be paid and the Loan Documents executed by Managing Agent in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofherewith.
(h) E. The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Managing Agent shall have received from an amendment fee in accordance with the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an fee letter executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to by the Borrower for purposes of Section 2.05(a)(i) distribution to each Lender who is a signatory hereto in accordance with each Lender's respective Pro Rata Share of the Amended and Restated Credit AgreementCommitments.
Appears in 1 contract
Sources: Credit Agreement (Hartmarx Corp/De)
Conditions to Effectiveness. This The effectiveness of this Amendment and the obligations of the Tranche B-1 Term Lenders to make the Tranche B-1 Term Loans shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of first Business Day on which the following conditions are satisfied or waived (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment No. 2 Effective Date”):
(ai) The the Administrative Agent (or its counsel) shall have received counterparts of this Amendment or Amendment No. 2 Consents that, when taken together, bear the signatures of (A) each Tranche B-1 Cashless Option Lender and each Tranche B-1 Post-Closing Option Lender, (B) the Administrative Agent, (C) the Tranche B-1 Additional Term Lender, (D) the Borrower and (E) each Guarantor;
(ii) the Administrative Agent shall have received a duly executed counterpart signature page notice of this Amendment Borrowing for the Additional Tranche B-1 Term Loans (whether in writing or by telephone) in accordance with the BorrowerCredit Agreement;
(iii) the Administrative Agent’s receipt of the following, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(bA) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an favorable opinion of Ropes ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to for the Loan Parties, in a form and substance reasonably satisfactory to the Administrative Agent and the Amendment No. 2 Arrangers;
(B) a certificate from a Responsible Officer of each Loan Party dated as of the Amendment No. 2 Effective Date, and attaching the documents referred to in clause (C) below;
(C) the Administrative Agent shall have received (i) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing (a) the execution, delivery and performance of the Amendment (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the extensions of credit contemplated hereunder, certified as of the Amendment No. 2 Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and reasonably satisfactory effect without modification or amendment and (ii) a good standing certificate as of a recent date from the applicable Governmental Authority of each Loan Party having its jurisdiction of incorporation, organization or formation in either of the states of Delaware or New York;
(D) immediately before and immediately after giving effect to this Amendment and the borrowing of or exchange into the Tranche B-1 Term Loans and to the Administrative Agent.
application of any proceeds therefrom, (di) Each no Default or Event of Default shall exist and (ii) all of the conditions set forth representations and warranties contained in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied true and correct in all material respects at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of the Amendment Effective Date.such earlier date);
(eE) The the Administrative Agent shall have received from the Borrower an Officer’s Certificate certifying as to compliance with the preceding clause (D);
(F) the Administrative Agent shall have received a certificate of a Responsible Officer attesting to the Solvency of the Borrower and its Subsidiaries, taken as a whole, after giving effect to the transactions hereunder, from the Borrower, certifying ’s chief financial officer or treasurer; and
(G) the conditions precedent representations and warranties of each Loan Party set forth in Sections 4.02(aSection 6 below shall be true and correct in all material respects; and
(iv) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of fees in the amounts previously agreed in writing by the Amendment No. 2 Arrangers to be received on the Amendment No. 2 Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid Date and all reasonable fees and documented or invoiced out-of-pocket costs and expenses (including the reasonable legal fees fees, charges and expenses disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by llp, as counsel to the Amendment No. 2 Arrangers and the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. ) incurred in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced transactions contemplated hereby for which invoices have been presented at least one (1) Business Day prior to the date hereof.
(h) The Borrower Amendment No. 2 Effective Date, shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth been paid in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans)full.
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Installed Building Products, Inc.)
Conditions to Effectiveness. This Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective only upon effective, and Borrower shall have no rights under this Amendment, until the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):
(a) The Administrative Agent shall have received a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the following:
(a) duly executed signature pages hereto, to this Amendment from the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 LoansBorrower, the Administrative Agent and the Collateral Agent.each Loan Party;
(b) Each Term Lender executing this fully executed copy of the First Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by Senior Subordinated Notes Indenture, which shall be in full force and effect on the Borrower date hereof and shall be in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably substance satisfactory to the Administrative Agent.;
(c) fully executed copy of the First Amendment to the Junior Subordinated Securities Purchase Agreement, which shall be in full force and effect on the date hereof and shall be in form and substance satisfactory to the Administrative Agent;
(d) Each fully executed copy of the conditions set forth in Section 4.02 of Second Amendment to the Amended and Restated Credit Agreement Bridge Note Purchase Agreement, which shall be satisfied as of in full force and effect on the Amendment Effective Date.date hereof and shall be in form and substance satisfactory to the Administrative Agent;
(e) The Administrative Agent shall have received a certificate payment in full in cash of a Responsible Officer an amendment fee in an amount equal to $50,000, to be paid pro rata to the Lenders based upon their Pro Rata Share of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and Commitments as of the date hereof (the “Senior Amendment Effective Date.Fee”); provided, however, if a fee in excess of the Senior Amendment Fee shall become due and payable in connection with the First Amendment to any of the Senior Subordinated Notes Indenture or the Junior Subordinated Securities Purchase Agreement, or the Second Amendment to the Bridge Note Purchase Agreement (each, a “Junior Amendment Fee”), then the Senior Amendment Fee shall automatically be increased to the amount by which such Junior Amendment Fee exceeds the Senior Amendment Fee;
(f) The Administrative Agent evidence that the Borrower shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;cash proceeds of at least $10,000,000 from the First Amendment Equity Issuance; and
(g) The Borrower shall have paid payment in full in cash of all fees and expenses of the Administrative Agent and the Lenders owing as of the date hereof, including all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment counsel to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (and the “Consent Deadline” and each such Lender, a “Consenting Lender”)Lenders.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (on the date of satisfaction or waiver of (such conditions being referred to herein as date, if any, the “First Amendment Effective Date”):) that the following conditions shall have been satisfied:
(a) The Administrative Agent shall have received a duly (i) this Amendment, executed counterpart signature page of this Amendment and delivered by the Parent Borrower, the Administrative Agent, each of the Borrower’s subsidiaries Lenders and the Issuing Lenders listed on the signature pages heretohereto and (ii) the acknowledgment and consent attached to this Amendment as Annex I (the “Acknowledgment”), the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent executed and the Collateral Agent.delivered by each Guarantor;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer from the Parent Borrower and, substantially concurrently with the satisfaction of the Borrower, certifying the other conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and this Section 3, each other Loan Party, dated as of the First Amendment Effective Date., substantially in the form of Exhibit G to the Credit Agreement, with appropriate insertions and attachments of resolutions or other actions, evidence of incumbency and the signature of authorized signatories and Organizational Documents, executed by a Responsible Officer and the Secretary or any Assistant Secretary or other authorized representative of such Loan Party;
(fc) The the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect the following executed legal opinions, each in form and substance reasonably satisfactory to each Mortgaged Property;the Administrative Agent:
(gi) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable executed legal fees and expenses opinion of Debevoise & ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Parent Borrower and the other Loan Parties;
(ii) incurred by the Administrative Agentexecuted legal opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fargo Securities& Finger, LLC P.A., special Delaware counsel to certain of the Loan Parties; and
(iii) executed legal opinion of Holland & Knight LLP, special Florida counsel to certain of the Loan Parties;
(d) the Administrative Agent and Deutsche Bank Securities Inc. in connection with the preparation, negotiation Blue Point Lead Arrangers shall have received at least three Business Days prior to the First Amendment Effective Date all documentation and execution of this Amendment or otherwise required information about the Parent Borrower and the Guarantors mutually agreed to be paid required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act (as published May 11, 2016 and effective May 11, 2018, as amended from time to time), that has been reasonably requested in connection with this Amendment, writing by the applicable Blue Point Lead Arranger at least 12 Business Days prior to the First Amendment Effective Date;
(e) the Blue Point Committed Lenders and the Blue Point Lead Arrangers shall have received all fees related to the Blue Point Transactions payable to them to the extent invoiced at least one Business Day prior due which may be offset against the proceeds of the First Amendment Debt Financing;
(f) the Blue Point Lead Arrangers shall have received a certificate of the chief financial officer or treasurer (or other comparable officer) of the Parent Borrower certifying the Solvency, after giving effect to the Blue Point Transactions, of the Parent Borrower and its Subsidiaries on a consolidated basis in substantially the form of Exhibit I to the Credit Agreement;
(g) From the date hereof.of the Blue Point Acquisition Agreement, there has not occurred any Material Adverse Effect (as defined in the Blue Point Acquisition Agreement), nor has any event or events occurred that, individually or in the aggregate, with or without lapse of time, could reasonably be expected to result in a Material Adverse Effect (as defined in the Blue Point Acquisition Agreement);
(h) The Borrower the Blue Point Acquisition shall have issued at least $500.0 million aggregate principal amount been or, substantially concurrently with the initial funding pursuant to the First Amendment Debt Financing , shall be, consummated in all material respects in accordance with the terms of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) firstBlue Point Acquisition Agreement, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before without giving effect to extensions any modifications, amendments, express waivers or express consents thereunder by the Parent Borrower that are materially adverse to the Lenders and Issuing Lenders without the consent of the Blue Point Lead Arrangers (such consent not to be unreasonably withheld, conditioned or delayed and provided that the Blue Point Lead Arrangers shall be deemed to have consented to such modification, amendment, waiver or consent unless they shall object thereto within three Business Days after receipt of written notice of such modification, amendment, waiver or consent), it being understood and agreed that (i) any change in the Purchase Price (as defined in the Blue Point Acquisition Agreement) shall not be deemed to be materially adverse to the Lender and Issuing Lenders but (x) any resulting reduction in cash uses shall be allocated to a reduction in the Incremental Term B-2 Loan Facility and (y) any increase in the Purchase Price (as defined in the Blue Point Acquisition Agreement) (excluding, for the avoidance of doubt, any purchase price adjustments in accordance with the terms of the Blue Point Acquisition Agreement) shall be funded (at the Parent Borrower’s option) with cash on hand and up to $25.0 million of ABL Facility Loans (as defined in the Existing Term Loan Credit Agreement) and (ii) any modification, amendment, express waiver or express consent to Term B-5 Loans).the definition of “Material Adverse Effect” in the Blue Point Acquisition Agreement shall be deemed to be materially adverse to the Lenders and Issuing Lenders; provided that the Blue Point Lead Arrangers shall be deemed to have consented to such modification, amendment, express waiver or express consent unless they shall object thereto within three Business Days after receipt of written notice of such modification, amendment, express waiver or express consent;
(i) After giving effect the Blue Point Lead Arrangers shall have received (i) audited consolidated balance sheets and related statements of operations, equity and cash flows of the Parent Borrower for the fiscal years ended January 28, 2018 and February 3, 2019, (ii) unaudited consolidated balance sheets and related statements of operations and cash flows of the Parent Borrower for any subsequent fiscal quarter and the portion of the fiscal year through the end of such quarter (other than, in each case, the fourth fiscal quarter of any fiscal year) ended at least 60 days prior to the First Amendment Effective Date, (iii) reviewed combined balance sheets and related statements of income and equity and cash flows of the Company for the fiscal years ended December 31, 2017 and December 31, 2018 and (iv) unreviewed combined balance sheets and related statements of income of the Company for any subsequent fiscal quarter and the portion of the fiscal year through the end of such quarter (other than, in each case, the fourth fiscal quarter of any fiscal year) ended at least 60 days prior to the First Amendment Effective Date;
(j) (i) the prepayment of Term Loans from the net proceeds condition in Section 7.02(a) of the New Senior Notes Blue Point Acquisition Agreement (but only with respect to the representations that are material to the interests of the Lender and Issuing Lenders, and only to the extent that the Parent Borrower (and any of its Affiliates that is a party to the Blue Point Acquisition Agreement) has the right to terminate its (and their) obligations under the Blue Point Acquisition Agreement (or otherwise decline to consummate the Blue Point Acquisition) without liability to the Parent Borrower or any of its Affiliates as a result of a breach of such representations in the Blue Point Acquisition Agreement (the “Seller Representations”; provided that the representation set forth in Section 4.06(a) of the Blue Point Acquisition Agreement shall be deemed a Seller Representation)) shall have been satisfied and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans Specified Representations (as contemplated by defined in the Amended and Restated Credit Agreement) shall be true and correct in all material respects, except to the combined principal amount extent they relate to a particular date in which case such Specified Representations shall be true and correct in all material respects on and as of the Term B-2 Loans such date as if made on and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.as of such date;
(jk) The the Administrative Agent shall have received a certificate from a Responsible Officer of the Parent Borrower, dated as of the First Amendment Effective Date, substantially in the form of Exhibit H to the Credit Agreement but also including a certification that, as of the First Amendment Effective Date, no Specified Default shall have occurred and be continuing; and
(l) the Collateral Agent shall have received customary lien searches in the United States reasonably requested by it at least 30 calendar days prior to the First Amendment Effective Date; provided that if such lien searches have not been delivered to the Collateral Agent on or prior to the First Amendment Effective Date after the Parent Borrower’s commercially reasonable efforts to do so, then delivery of such lien searches shall not constitute a condition precedent to the initial borrowings hereunder if the Parent Borrower any fees required in connection with agrees to deliver or cause to be delivered such lien searches pursuant to arrangements to be mutually agreed between the Parent Borrower and the Administrative Agent. The execution and delivery of this Amendment in Dollars for by the account of each Lender (other than a Defaulting Lender) that has returned Lenders and Issuing Lenders hereunder shall conclusively be deemed to constitute an executed signature page to this Amendment to acknowledgment by the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and Lenders and Issuing Lenders that each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to conditions precedent set forth in this Section VII(h)(b) 3 shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreementhave been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person.
Appears in 1 contract
Conditions to Effectiveness. This Amendment Agreement shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 as of the Existing Credit Agreement date on which each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein have been satisfied, as the “Amendment Effective Date”):determined by Agent in its sole discretion:
(a) The Administrative Agent shall have received a substantially final copy of the Third Amendment Acquisition Agreement and any other material documents, instruments or agreements executed in connection therewith and reasonably requested by Agent;
(b) the Acquisition contemplated by Third Amendment Acquisition Agreement shall have been consummated;
(c) the Agent shall have received (including by way of facsimile or other electronic transmission) a duly authorized, executed and delivered counterpart of the signature page to this Amendment from each Credit Party, the Agent and the Lenders;
(d) the Agent shall have received a duly executed counterpart signature page copy of this Amendment by the BorrowerNo. 3 to Credit, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Security and Guaranty Agreement (Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.Loan);
(be) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by itan updated Perfection Certificate, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date in form and substance reasonably satisfactory to the Administrative Agent.;
(df) Each Agent shall have received a duly authorized, executed and delivered secretary’s certificate from each Credit Party certifying as to (i) the names and signatures of each officer of each Credit Party authorized to execute and deliver this Amendment and all documents executed in connection therewith, (ii) the organizational documents of each Credit Party attached to such certificate are complete and correct copies of such organizational documents as in effect on the date of such certification, (iii) the resolutions of each Credit Party’s board of directors or other appropriate governing body approving and authorizing the execution, delivery and performance of this Amendment and the other documents executed in connection therewith, and (iv) certificates attesting to the good standing of each Credit Party in its jurisdiction of organization;
(g) Agent shall have received a duly executed certificate of Borrower certifying with respect to the Third Amendment Acquisition as to the satisfaction of each condition contained in the definition of Permitted Acquisition other than the conditions set forth in Section 4.02 clauses (a), (l) and (m) therein and attaching the projections required by clause (n) of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.such definition;
(eh) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrowerreceived, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
Credit Party, (gi) The Borrower shall have paid all reasonable fees current UCC searches from the Secretary of State of its jurisdiction of organization; and out-of-pocket expenses (including the reasonable legal fees ii) judgment, federal tax lien, personal property tax lien, and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agentcorporate and partnership tax lien searches, ▇▇▇▇▇ Fargo Securitiesin each applicable jurisdiction, LLC and Deutsche Bank Securities Inc. in connection each case, with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, results reasonably acceptable to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).Agent;
(i) After giving effect to the amendments set forth in Section 2, all representations and warranties set forth in the Credit Agreement shall be true and correct in all material respects (iwithout duplication of any materiality qualifier in the text of such representation or warranty) the prepayment of Term Loans from the net proceeds as of the New Senior Notes date hereof, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (iiwithout duplication of any materiality qualifier in the text of such representation or warranty) the conversion (and Borrower’s delivery of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not its signature hereto shall be greater than $500.0 million on a pro forma basis.deemed to be its certification thereof); and
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page immediately prior to and after giving effect to this Amendment to the Administrative Agent at Amendment, no Default or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment Event of Default exists under any of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit AgreementFinancing Documents.
Appears in 1 contract
Sources: Credit, Security and Guaranty Agreement (Revolving Loan) (Xtant Medical Holdings, Inc.)
Conditions to Effectiveness. This First Amendment shall become effective only and binding upon the satisfaction or waiver in accordance with Section 10.01 of Credit Parties, MetLife and the Existing Credit Agreement of the following conditions (Noteholders on the date of satisfaction or waiver of such conditions being referred to herein as this First Amendment (the “First Amendment Effective Date”):) upon the satisfaction of each of the following conditions:
(a) The Administrative Agent MetLife and the Noteholders shall have received a counterparts of this First Amendment, duly executed counterpart signature page of this Amendment and delivered by the BorrowerCompany, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent MetLife and the Collateral Agent.Noteholders and agreed to and acknowledged by the Subsidiary Guarantors;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as representations and warranties of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions Credit Parties set forth in Section 4.02 of the Amended and Restated Credit Agreement herein shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) true and (b) of the Amended and Restated Credit Agreement shall have been satisfied correct on and as of the Amendment Effective Date.date hereof;
(c) substantially concurrently herewith, MetLife and the Noteholders shall have received a Request for Purchase in respect of the Series C Notes (the “Request for Purchase”), duly executed and delivered by the Company, dated the date hereof and substantially in the form of Exhibit 2(c) to the Note Purchase Agreement;
(d) substantially concurrently herewith, MetLife and the Noteholders shall have received a Confirmation of Acceptance in respect of the Series C Notes (the “Confirmation of Acceptance”), duly executed and delivery by the Company and the Series C Purchasers, dated the date hereof and substantially in the form of Exhibit 2(e) to the Note Purchase Agreement;
(e) substantially concurrently herewith, the Series C Purchasers shall have received the Series C Notes, dated the date hereof and in the principal amounts set forth opposite such Series Purchasers’ names on the Purchaser Schedule attached to the Confirmation of Acceptance, and all opinions, certificates and other documentation required to be delivered in accordance with the requirements of Section 4 of the Note Purchase Agreement in connection with the issuance and sale of the Series C Notes on the date hereof; and
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower the Company shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees costs and expenses of the Noteholders relating to this First Amendment, including, without limitation, the reasonable fees, costs and expenses of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, as counsel to the extent invoiced Noteholders, for which an invoice has been presented in reasonable detail at least one Business Day prior to the date hereofof requested payment.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Multicurrency Note Purchase and Private Shelf Agreement (Idexx Laboratories Inc /De)
Conditions to Effectiveness. This Amendment The amendments to the Credit Agreement set forth in Section 1 and the commitment increases and assignments set forth in Sections 2 and 3, respectively, above shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions first date (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):) on which the following conditions have been satisfied:
(a) The the Administrative Agent shall have received a duly counterparts hereof executed counterpart signature page by the Administrative Agent, the Company, each Swingline Lender, each Issuing Bank and each other Lender;
(b) The Company shall have paid all fees required to be paid to certain of the Joint Lead Arrangers in connection with this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, as separately agreed;
(c) the Administrative Agent and the Collateral Agent.Joint Lead Arrangers shall have received payment for all reasonable and documented costs and expenses required to be paid or reimbursed under Section 12.2 of the Credit Agreement, as amended hereby;
(bd) Each Term Lender executing The representations and warranties set forth in Section 5 of this Amendment as a “Term B-5 Lender” shall be true and correct;
(e) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received:
(i) from the Company, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to dated the Amendment Effective Date., certificates and other documentation, in form and substance substantially consistent with the certificates and other documentation delivered on the Effective Date pursuant to Sections 3.1 and 3.2 of the Credit Agreement or otherwise reasonably acceptable to the Administrative Agent;
(cii) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an a legal opinion of Ropes ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date Borrowers in form and substance reasonably satisfactory to the Administrative Agent.;
(diii) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, Company dated the Amendment Effective Date certifying as to the conditions precedent representations and warranties set forth in Sections 4.02(a) and (b) Section 5 of the Amended and Restated Credit Agreement shall have been satisfied on and as of the this Amendment Effective Date.Agreement; and
(f) The the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agentreceived, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender party to the Amended Credit Agreement, an upfront fee, equal to (other i) for each Lender that is a party to the Credit Agreement, (x) 0.030% of that portion of the commitment of such Lender that is equal to or less than a Defaulting Lenderits commitment on the Effective Date under (and as defined in) that has returned an executed signature page the Credit Agreement and (y) 0.090% of the commitment of such Lender in excess of its commitment on the Effective Date under the Credit Agreement (payable on the amount of such excess) and (ii) 0.090% for the commitment of each Lender party to this Amendment Agreement and Amended Credit Agreement that is not party to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated existing Credit Agreement.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/)
Conditions to Effectiveness. This Third Amendment shall become be effective only upon as of September 10, 2008, subject to the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):following:
(a) The the Administrative Agent shall have received a duly executed counterpart signature page counterparts of this Third Amendment executed by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably counterparts of this Third Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) the representations and warranties set forth in Section 2 of this Third Amendment shall be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date true and reasonably satisfactory to the Administrative Agent.correct;
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account benefit of each Lender (other than a Defaulting Lender) that has returned an executed signature page to executing and delivering this Third Amendment to the Administrative Agent at or prior its counsel by the date and time communicated to 12:00 p.m., New York City time on September 24, 2010 the Lenders by the Administrative Agent an amendment fee in immediately available funds in an amount equal to the product of (i) 0.15% and (ii) the “Consent Deadline” amount that each Lender’s Commitment;
(e) the Administrative Agent shall have received counterparts of the Security Agreement executed by the Borrower and each Granting Party, together with related UCC-1 financing statements, intellectual property filings, stock or other appropriate certificates, if applicable, for 100% of the equity interest of each Domestic Subsidiary;
(f) the Administrative Agent shall have received certificates showing the existence of all insurance policies required by the Collateral Documents, together with certificates and endorsements naming the Collateral Agent as loss payee and additional insured;
(g) the Calyon Credit Agreement, and the Note Purchase Agreements shall have been amended in form and substance satisfactory to the Administrative Agent;
(h) the Administrative Agent shall have received certificates of resolutions or other similar action, incumbency certificates and/or certificates of Responsible Officers of the Borrower and each Granting 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 Third Amendment;
(i) the Administrative Agent shall have received an opinion of the Borrower’s counsel, in form and substance satisfactory to the Administrative Agent, with respect to matters set forth in Sections 2(c), (d) and (e) of this Third Amendment and with respect to such Lender, a “Consenting Lender”other matters as requested by the Administrative Agent or its counsel;
(j) the Administrative Agent shall have received counterparts of the Intercreditor Agreement executed by all parties thereto (including the Administrative Agent on behalf of the Lenders).;
(k) Each prepayment the Administrative Agent shall have received all fees payable to the Administrative Agent and Arranger as agreed to by the Borrower;
(l) the Borrower shall have paid all Attorney Costs of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated Administrative Agent incurred in connection with this Third Amendment to the Borrower for purposes of Section 2.05(a)(iextent invoiced; and
(m) of the Amended Administrative Agent and Restated Credit Agreementthe Lenders shall have received in form and substance satisfactory to the Administrative Agent and the Lenders, such other documents and certificates as the Lenders shall require.
Appears in 1 contract
Sources: Fourth Amended and Restated Credit Agreement (Spartech Corp)
Conditions to Effectiveness. This Amendment shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of date (the Existing Credit Agreement “Third Amendment Effective Date”) on which each of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):is satisfied:
(a) A. The Administrative Agent (or its counsel) shall have received (i) a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding or a majority completed Converting Lender Election substantially in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower in substantially the form of Annex Exhibit A hereto(a “Converting Lender Election”) hereto from each Replacement Term Lender, evidencing and (ii) a counterpart of this Amendment from each Loan Party signed on behalf of such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Dateparty.
(c) B. The Administrative Agent (or its counsel) shall have received such opinions as may reasonably be requested by it, including an the executed legal opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees and out-of-pocket expenses (including the reasonable legal fees and expenses of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by , counsel to the Loan Parties, in form reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such legal opinion.
C. The Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan Party, ▇▇▇▇▇ Fargo Securitiesdated as of the Third Amendment Effective Date, LLC substantially in the form of such certificate delivered as of the Second Restatement Effective Date, with appropriate insertions and Deutsche Bank Securities Inc. attachments including the certificate of incorporation of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party, or certification that such attachments provided in connection with such certificate on May 26, 2023, have not been modified, rescinded or amended and are in full force and effect, (ii) a long form good standing certificate and bringdown good standings for each Loan Party from its jurisdiction of organization and (iii) certified resolutions from the preparationboard of directors, negotiation members or other similar body of each Loan Party authorizing the execution, delivery and execution performance of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from received, at least five days prior to the Third Amendment Effective Date, all documentation and other information regarding the Borrower any fees required requested in connection with this applicable “know your customer” and Anti-Money Laundering Laws, including the Act, to the extent reasonably requested in writing of the Borrower at least ten days prior to the Third Amendment in Dollars for Effective Date and (ii) to the account of each extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Third Amendment Effective Date, any Lender (other than a Defaulting Lender) that has returned an executed requested, in a written notice to the Borrower at least ten days prior to the Third Amendment 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 or a completed Converting Lender Election as contemplated by clause (A) above, the condition set forth in this clause (D)(ii) shall be deemed to be satisfied).
E. The Borrower shall have (i) paid all fees and other amounts due and payable on or prior to the Third Amendment Effective Date pursuant to Section 9.03 of the Credit Agreement, including reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder and (ii) substantially simultaneously (subject to the proviso in the first sentence of Article I, clause (E) above) with the borrowing of Replacement Term Loans hereunder, fully prepaid all Existing Term Loans, together with accrued and unpaid interest thereon to the Third Amendment Effective Date.
F. The Borrower shall have delivered to the Administrative Agent (or its counsel) a certificate of a Responsible Officer, dated as of the date of borrowing, in form and substance reasonably satisfactory to the Administrative Agent, certifying as of the date of borrowing to clauses (B) and (C) of Article II above.
G. The Borrower shall have delivered to the Administrative Agent a Borrowing Request in respect of such borrowing of Replacement Term Loans to be made on the Third Amendment Effective Date at or least three Business Days prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)Third Amendment Effective Date.
H. The Administrative Agent (kor its counsel) Each shall have received a certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole on a consolidated basis) on the Third Amendment Effective Date after giving effect to the incurrence of Replacement Term Loans from a Financial Officer of the Borrower in substantially the same form as such certificate delivered on the Second Restatement Effective Date.
I. The Borrower shall have delivered to the Administrative Agent a prepayment notice in respect of such prepayment of Existing Term Loans to be made on the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated Third Amendment Effective Date at least three Business Days prior to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit AgreementThird Amendment Effective Date.
Appears in 1 contract
Sources: Second Amended and Restated Credit Agreement (Cinemark Usa Inc /Tx)
Conditions to Effectiveness. This Amendment and Restatement and the obligations of the Lenders to make Loans under the Restated Credit Agreement shall become effective only upon on the satisfaction date (the “Restatement Date”) on which each of the following conditions is satisfied (or waiver waived in accordance with Section 10.01 8.02 of the Existing Restated Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”Agreement):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a duly executed counterpart of this Amendment and Restatement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment by the Borrower, each and Restatement) that such party has signed a counterpart of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding this Amendment and Restatement.
(b) The Administrative Agent shall have received a majority in principal amount of Term B-2 Loans, written opinion (addressed to the Administrative Agent and the Collateral AgentLenders and dated the Restatement Date) of each of (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
, General Counsel of the Borrower, and (bii) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have received▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, if requested by itcounsel for the Borrower, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by the Borrower substantially in substantially the form of Annex A heretoExhibits ▇-▇ and B-2, evidencing respectively, and covering such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned other matters relating to the Borrower, this Amendment and Restatement, the Restated Credit Agreement or the Transactions as the Required Lenders shall reasonably request. The Borrower any Note held by it prior hereby requests such counsel to the Amendment Effective Datedeliver such opinions.
(c) The Administrative Agent shall have received such opinions documents and certificates as the Administrative Agent or its counsel may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel request relating to the Loan Partiesorganization, each dated as existence and good standing of the Borrower, the authorization of this Amendment Effective Date and reasonably Restatement and any other legal matters relating to the Borrower, this Amendment and Restatement or the Restated Credit Agreement, all in form and substance satisfactory to the Administrative AgentAgent and its counsel.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of certificate, dated the Restatement Date and signed by the President, a Responsible Vice President or a Financial Officer of the Borrower, certifying confirming the conditions precedent representations and warranties set forth in Sections 4.02(aparagraphs (a) and (b) of Section 2 of this Amendment and Restatement.
(e) If any “Lender” under (and as defined in) the Amended Existing Credit Agreement is not identified on Schedule 2.01 hereto as a Lender under the Restated Credit Agreement, then (i) the “Commitment” of each such Lender under (and Restated as defined in) the Existing Credit Agreement shall be terminated, and (ii) this Amendment and Restatement shall have been satisfied on signed by Lenders constituting the “Required Lenders” under (and as of defined in) the Amendment Effective DateExisting Credit Agreement.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower shall have paid all reasonable fees Unless the Lenders and out-of-pocket expenses (including their respective Commitments under the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans Restated Credit Agreement as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) Restatement Date will remain the conversion same as those of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.the
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Limited Brands Inc)
Conditions to Effectiveness. This Amendment The amendments set forth in Section 2 and the amendment and restatement of the Existing Notes set forth in Section 3 shall become effective only upon on the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of first date on which the following conditions precedent have been satisfied or waived (the first date of satisfaction or waiver of on which such conditions being referred to herein as shall have been so satisfied or waived, the “First Amendment Effective Date”):
(a) The Administrative Agent Company, MetLife and the Holders shall have received executed and delivered a duly executed counterpart signature page of this Amendment by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages hereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral AgentAmendment.
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” MetLife and the Holders shall have received, if requested by it, one or more replacement Notes payable received a fully executed copy of an amendment agreement to the order Existing Credit Facility, dated as of such Term B-5 Lender duly executed April 17, 2020 (the “Bank Amendment”), by and among the Borrower in substantially the form of Annex A heretoCompany, evidencing such Term B-5 Lenders’ Term B-5 LoansJPMorgan Chase Bank, N.A., as extended; provided that such Term B-5 Lender shall have returned administrative agent, and the lenders party thereto, in form and substance satisfactory to the Borrower any Note held by it prior to the Amendment Effective DateRequired Holders.
(c) The Administrative Agent MetLife and the Holders shall have received such opinions as may reasonably be requested by it, including a fully executed copy of an opinion of Ropes & ▇▇▇▇ LLP, amendment agreement to the New York counsel to the Loan PartiesLife Master Note Facility, each dated as of the Amendment Effective Date date hereof (the “New York Life Amendment”), by and reasonably among the Company, NYL Investors LLC and the other holders of notes party thereto, in form and substance satisfactory to the Administrative AgentRequired Holders.
(d) Each MetLife and the Holders shall have received a fully executed copy of an amendment agreement to the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied Prudential Shelf Agreement, dated as of the Amendment Effective Datedate hereof (the “Prudential Amendment”), by and among the Company, PGIM, Inc., The Prudential Insurance Company of America and the other holders of notes party thereto, in form and substance satisfactory to the Required Holders.
(e) The Administrative Agent MetLife and the Holders shall have received a certificate of signed by a Responsible Officer of the BorrowerCompany, in form and substance satisfactory to the Holders, certifying that the conditions precedent set forth specified in Sections 4.02(aclauses (h) and (bi) of the Amended and Restated Credit Agreement shall have this Section 5 has been satisfied on and as of the First Amendment Effective Date.
(f) The Administrative Agent MetLife and the Holders shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect certificate of a Secretary or Assistant Secretary of the Company, dated as of the date hereof, (i) certifying as to each Mortgaged Property;the resolutions attached thereto, incumbency of applicable officers and other corporate proceedings relating to the authorization, execution and delivery of this Amendment and the Amended and Restated Notes, and (ii) attaching true, correct and complete copies of the corporate charter and bylaws of the Company or certifying that the corporate charter and bylaws most recently provided to the Holders are still in full force and effect and have not since been amended, restated, supplemented or otherwise modified in any respect.
(g) The Borrower MetLife and the Holders shall have paid all reasonable fees received a good standing certificate for the Company from the Secretary of State of Delaware, dated of a recent date, and out-of-pocket expenses (including such other evidence of the reasonable legal fees status of the Company as MetLife and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofHolders may reasonably request.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount Each of senior unsecured notes (the “New Senior Notes”) representations and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as warranties set forth in Section 4 above shall be true and correct as of the preceding clause date of the execution and delivery of this Amendment and as of the First Amendment Effective Date as if made on and as of such date (a)or if any representation and warranty is expressly stated to have been made as of a specific date, the Term B-2 Loans on a pro rata basis (before giving effect to extensions as of Term B-2 Loans to Term B-5 Loanssuch specific date).
(i) After No Default or Event of Default shall have occurred and be continuing on and as of the First Amendment Effective Date or immediately after giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basisthis Amendment.
(j) The Administrative Agent Each holder of the Notes shall have received from payment of an amendment fee of 10 basis points (0.10%) of the Borrower any fees required in connection with this Amendment in Dollars for principal amount of the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each outstanding Notes held by such Lender, a “Consenting Lender”)holder.
(k) Each prepayment The Company shall have paid the reasonable fees and disbursements of the Term B-2 Loans pursuant to Holders’ special counsel in accordance with Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement7 below.
Appears in 1 contract
Sources: Multicurrency Master Note Purchase Agreement (Henry Schein Inc)
Conditions to Effectiveness. This Amendment On or prior to the effectiveness of this Agreement, each Managing Agent, the Agent and the Surety Provider shall become effective only upon the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of have received the following conditions (documents, instruments, and fees, all of which shall be in a form and substance acceptable to each of them, or the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):following actions shall have occurred:
(a) The Administrative each Managing Agent, the Agent and the Surety Provider shall have received a copy of the Insurance Agreement duly executed by the parties thereto and the original executed Surety Bond shall have been delivered to the Collateral Agent;
(b) each Managing Agent, the Agent and the Surety Provider shall have received a Good Standing Certificate for (i) the Borrower issued by the Secretary of State of Delaware; (ii) for the Depositor issued by the Secretary of State of Florida; (iii) for the Originator, issued by the Secretary of State of Florida; and (iv) for each Eligible Originator, issued by the Secretary of State of Texas, in each case, the certificates of qualification in all foreign jurisdictions where such qualification is material to the transactions contemplated by this Loan Agreement or the other Operative Documents;
(c) each Managing Agent, the Agent and the Surety Provider shall have received an Opinion of Counsel of special counsel to the Borrower, the Originator, the Eligible Originators and the Depositor, covering certain tax, corporate, enforceability, perfection and priority matters set forth in Exhibit C hereto;
(i) each Managing Agent, the Agent and the Surety Provider shall have received this Loan Agreement, the BAT Agreement, the DAT Agreement, the Master Servicing Agreement, the Subservicing Agreement and the CCA Agreement, duly executed by the parties thereto and a certified copy of the Trust Agreement duly executed by the Depositor, as Grantor, and the Owner Trustee and (ii) the Agent shall have received a the VFN, duly executed counterpart signature page of this Amendment by the Borrower;
(i) each Managing Agent, the Agent shall have received the Fee Letter related to its Group duly executed by the parties thereto; (ii) the Borrower shall have paid or caused to be paid to the Agent all amounts to be paid on the Closing Date pursuant to such Managing Agent’s Fee Letter; and (iii) the Surety Provider shall have received any amounts required to be paid to it pursuant to the Insurance Agreement on the Closing Date;
(f) a certificate of the secretary or assistant secretary of each of the Borrower’s subsidiaries listed on , Depositor, each Eligible Originator and Originator certifying and (in the signature pages heretocase of clauses (i) through (iii)) attaching as exhibits thereto, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.among other things:
(bi) Each Term Lender executing this Amendment the articles of incorporation of such entity (certified by the Secretary of State or other similar official of the such entity’s jurisdiction of incorporation or organization, as applicable, as of a “Term B-5 Lender” shall have receivedrecent date);
(ii) the by-laws of such entity;
(iii) resolutions of the board of directors or other governing body of such entity authorizing the execution, delivery and performance by it of each Operative Document to be delivered by it hereunder or thereunder and all other documents evidencing necessary corporate action (including shareholder consents) and government approvals, if requested by itany; and
(iv) the incumbency, one or more replacement Notes payable to the order authority and signature of each officer of such Term B-5 Lender duly executed by entity executing the Borrower in substantially the form Operative Documents or any certificates or other documents delivered hereunder or thereunder on behalf of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.
(c) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property;
(g) The Borrower each Managing Agent, the Agent and the Surety Provider shall have paid received an Opinion of Counsel to the Originator, Eligible Originators and the Depositor (i) addressing the true sale of the Accounts (A) from the Originator and each Eligible Originator to the Depositor and (B) from the Depositor to the Borrower; and (ii) to the effect that, in the event of the insolvency of the Originator, any Eligible Originator or the Depositor, the Borrower would not be substantively consolidated with any such Person for purposes of the Bankruptcy Code;
(h) each Managing Agent, the Agent and the Surety Provider shall have received lien searches in the State of Florida with respect to the Originator and the Depositor, the State of its incorporation with respect to any Eligible Originator, and in the State of Delaware with respect to the Borrower, in form and substance satisfactory to the Agent and the Surety Provider;
(i) each Managing Agent, the Agent and the Surety Provider shall have received an opinion of counsel to the Collateral Agent, in form and substance satisfactory to the Agent and the Surety Provider;
(j) each Managing Agent, the Agent shall have received an opinion of the Vice President and Assistant General Counsel to the Surety Provider, in form and substance satisfactory to the Agent;
(k) all reasonable fees and out-of-pocket expenses (including the reasonable legal amounts, fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) incurred by the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required to be paid in connection with this Amendment, on or prior to the Closing Date pursuant to each Managing Agent’s Fee Letter (to the extent invoiced at least one Business Day prior not covered pursuant to the date clause (e) of this Section 4.1) and Section 7.4 hereof.;
(hl) The Borrower each Managing Agent, the Agent and the Surety Provider shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
received (i) After giving effect to (i) financing statements on Form UCC-3 terminating all existing security interests in the prepayment of Term Loans from the net proceeds of the New Senior Notes Collateral and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated by the Amended and Restated Credit Agreement, the combined principal amount financing statements on Form UCC-1 (A) naming each of the Term B-2 Loans Originator and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.Eligible Originator as Debtor/Seller and the Depositor as Secured Party/Purchaser; (B) naming the Depositor as Debtor/Seller and the Borrower as Secured Party/Purchaser; and (C) naming the Borrower as Debtor and the Collateral Agent as Secured Party; and
(jm) The Administrative the Agent and the Surety Provider shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account such other approvals, documents, instruments, certificates and opinions as either of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”)them shall reasonably request.
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
Appears in 1 contract
Sources: Variable Funding Loan Agreement (Walter Industries Inc /New/)
Conditions to Effectiveness. This Amendment shall become not be effective only upon until --------------------------- the Agent has received to its satisfaction or waiver in accordance with Section 10.01 each of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred to herein as the “Amendment Effective Date”):following:
(a) The Administrative Agent shall have received a duly executed counterpart signature page ten (10) counterparts of this Amendment Agreement executed by the Borrower, each of the Borrower’s subsidiaries listed on the signature pages heretoGuarantors, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent and the Collateral Agent.Lenders;
(b) Each Term Lender executing this Amendment as a “Term B-5 Lender” shall have receivedten (10) counterparts of the Security Agreement by and among the Borrowers, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed by Guarantors and the Borrower in substantially the form of Annex A hereto, evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to the Borrower any Note held by it prior to the Amendment Effective Date.Agent;
(c) The Administrative Agent shall have received such opinions as may reasonably be requested UCC-1 financing statements executed by it, including an opinion of Ropes & ▇▇▇▇ LLP, New York counsel each Borrower and each Guarantor in form and number to perfect the security interests in the Collateral granted pursuant to the Loan Parties, each dated as of the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.Security Instruments;
(d) Each ten (10) counterparts of the conditions set forth in Section 4.02 of Intellectual Property Security Agreement by the Amended Borrowers and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.Guarantors to the Agent;
(e) The Administrative Agent shall have received a certificate legal opinion of a Responsible Officer of counsel to the Borrower, certifying Borrowers and Guarantors in form and content satisfactory to the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.Agent;
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination corporate resolutions of the Borrowers and Guarantors with respect to each Mortgaged Propertythe transactions contemplated hereby;
(g) The Borrower shall with respect to each "new" Guarantor, fully executed copies of the following:
(i) Guaranty Agreement (ii) Security Agreement (iii) Negative Pledge Agreement (iv) Stock Pledge Agreement (v) Stock Certificate (vi) Stock Power (vii) Secretary's Certificate (viii) Intellectual Property Security Agreement
(h) evidence satisfactory to the Agent that all Subsidiaries of the Borrowers have paid executed all reasonable documentation required pursuant to the terms of the Credit Agreement and the other Loan Documents, including without limitation such documents and instruments as may be required pursuant to Section 8.19 of the Credit Agreement;
(i) copies of all letters of intent for acquisitions executed by the Borrowers or any Guarantor as to which the acquisitions contemplated thereby have not occurred;
(j) evidence satisfactory to the Agent that all Persons party to the Pledge Agreement have executed this Amendment Agreement;
(k) evidence of payment by Borrowers of all fees owing to Agent and out-of-pocket expenses BAS (including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPtheir counsel, recording fees, and fees resulting from the fee letter), and payment by Borrowers to any consenting Lender of an amendment fee of fifteen (15) incurred by basis points on the Administrative Agent, ▇▇▇▇▇ Fargo Securities, LLC and Deutsche Bank Securities Inc. in connection with the preparation, negotiation and execution of this Amendment or otherwise required Total Revolving Credit Commitment allocable to be paid in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereofsuch Lender.
(h1) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) such other documents, instruments and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans certificates as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as contemplated reasonably requested by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basisAgent.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) shall be allocated to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit Agreement.
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Conditions to Effectiveness. This The effectiveness of this Amendment shall become effective only upon is subject to the satisfaction or waiver in accordance with Section 10.01 of the Existing Credit Agreement of the following conditions (the date of satisfaction or waiver of such conditions being referred precedent in a manner satisfactory to herein as the “Amendment Effective Date”):Agent, unless specifically waived in writing by Agent:
(a) The Administrative Agent shall have received a each of the following, each in form and substance satisfactory to Agent, in its sole discretion, and, where applicable, each duly executed counterpart signature page by each party thereto, other than Agent:
(i) This Amendment, duly executed by Companies, the Guarantors and the New Companies;
(ii) Certified copies of the resolutions of the Board of Directors or Executive Committee of each of the Companies, the Guarantors and the New Companies, authorizing the execution, delivery and performance of this Amendment and any and all other Loan Documents executed by any of the Companies, the Guarantors or the New Companies in connection therewith, along with a certificate of incumbency certified by the Borrower, secretary of each of the Borrower’s subsidiaries listed on New Companies, and, if there has been any change from the signature pages heretomost recent incumbency certificates delivered by any of the Companies or the Guarantors a certificate of incumbency certified by the secretary of each of the Companies and each of the Guarantors, with specimen signatures of the officers of the Companies, the Required Lenders, Term B-2 Lenders holding a majority in principal amount of Term B-2 Loans, the Administrative Agent Guarantors and the Collateral New Companies who are authorized to sign such documents, all in form and substance satisfactory to the Agent.;
(biii) Each Term Lender executing this Pledge Amendment as a “Term B-5 Lender” shall have received, if requested by it, one or more replacement Notes payable to the order of such Term B-5 Lender duly executed signed by the Borrower Parent pledging all of its ownership interest in substantially the form of Annex A heretoNew Companies, together with stock powers duly signed in blank and the original stock certificate evidencing such Term B-5 Lenders’ Term B-5 Loans, as extended; provided that such Term B-5 Lender shall have returned to Parent's ownership in the Borrower any Note held by it prior to the Amendment Effective Date.New Companies;
(civ) The Administrative Agent shall have received such opinions as may reasonably be requested by it, including an opinion A signed copy of Ropes & ▇▇▇▇ LLP, New York counsel to the Loan Parties, each Asset Purchase Agreement dated as of May 1, 2003 among Delta, USS-CHC Tubular Processing d/b/a Delta Tubular Processing, Camp-Hill Tubular Processing Company, L.P., and USS Tubular Processing, Inc. (the Amendment Effective Date and reasonably satisfactory to the Administrative Agent.
(d) Each of the conditions set forth in Section 4.02 of the Amended and Restated Credit Agreement shall be satisfied as of the Amendment Effective Date.
(e) The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying the conditions precedent set forth in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement shall have been satisfied on and as of the Amendment Effective Date.
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property"Delta Purchase Agreement");
(gv) The Borrower shall have paid all reasonable fees A closing certificate, in form and out-of-pocket expenses substance satisfactory to Agent, executed by Delta, confirming the acquisition under the Delta Purchase Agreement is closed;
(including the reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ vi) Opinion from Fulbright & ▇▇▇▇▇▇▇▇ LLP) incurred by the Administrative L.L.P. opining, in form and substance satisfactory to Agent, ▇▇▇▇▇ Fargo Securitieswhich shall cover such matters incident to the transactions contemplated by this Amendment as Agent may reasonably require and the Companies, LLC the Guarantors and Deutsche Bank Securities Inc. the New Companies hereby authorize and direct such counsel to deliver such opinions to Agent;
(vii) Evidence satisfactory to the Agent that casualty insurance policies of all Companies and Guarantors listing Agent as loss payee or additional insured, as the case may be, have been amended to cover the New Companies as well as all Companies and all Guarantors, and are in full force and effect, in form and substance satisfactory to Agent; and
(viii) All other documents Agent may request with respect to any matter relevant to this Amendment or the transactions contemplated hereby.
(b) The representations and warranties contained herein and in the Agreement and the other documents executed in connection with the preparationAgreement (herein referred to as "Loan Documents"), negotiation as each is amended hereby, shall be true and execution correct as of this Amendment the date hereof, as if made on the date hereof, except for such representations and warranties as are by their express terms limited to a specific date.
(c) No Default or Event of Default shall have occurred and be continuing, unless such Default or Event of Default has been otherwise required to be paid specifically waived in writing by Agent.
(d) All corporate proceedings taken in connection with this Amendment, to the extent invoiced at least one Business Day prior to the date hereof.
(h) The Borrower shall have issued at least $500.0 million aggregate principal amount of senior unsecured notes (the “New Senior Notes”) and used the net proceeds thereof to prepay (a) first, all Incremental Term B-3 Loans, prior to repayment of Term B-2 Loans and (b) second, after prepayment of Incremental Term B-3 Loans as set forth in the preceding clause (a), the Term B-2 Loans on a pro rata basis (before giving effect to extensions of Term B-2 Loans to Term B-5 Loans).
(i) After giving effect to (i) the prepayment of Term Loans from the net proceeds of the New Senior Notes and (ii) the conversion of $500.0 million principal amount of Term B-2 Loans into Term B-5 Loans as transactions contemplated by the Amended and Restated Credit Agreement, the combined principal amount of the Term B-2 Loans and Incremental Term B-3 Loans outstanding would not be greater than $500.0 million on a pro forma basis.
(j) The Administrative Agent shall have received from the Borrower any fees required in connection with this Amendment in Dollars for the account of each Lender (and all documents, instruments and other than a Defaulting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on September 24, 2010 (the “Consent Deadline” and each such Lender, a “Consenting Lender”).
(k) Each prepayment of the Term B-2 Loans pursuant to Section VII(h)(b) legal matters incident thereto shall be allocated satisfactory to the Borrower for purposes of Section 2.05(a)(i) of the Amended and Restated Credit AgreementAgent.
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