Conditions to Effectiveness. This Amendment shall become effective upon the date on which each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient: (i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent; (ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor; (iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent; (iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof; (v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor; (vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary; (vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary; (viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person; (ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment); (x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; (xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and (xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 2 contracts
Sources: Five Year Credit Agreement (Autonation, Inc.), Five Year Credit Agreement (Autonation, Inc.)
Conditions to Effectiveness. This Incremental Amendment shall become effective upon the date on which each satisfaction of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientconditions set forth below:
(ia) there shall exist no Default both immediately before and after giving effect to this Incremental Amendment;
(b) the Administrative Agent shall have received a counterpart signature page to this Incremental Amendment, duly executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (includingBorrower, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent, each Guarantor, the owners of the Capital Stock of the Mission Borrowers (the “Pledgors”), the Revolving Credit Lenders electing to rollover their Revolving Credit Commitments into Tranche A Revolving Commitments, the Additional Revolving Lenders and the Term B-2 Lenders;
(iic) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)received, substantially in on behalf of itself, the form of Exhibit B heretoCollateral Agent, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received Lenders, the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date Swing Line Lender and the transactions contemplated thereby L/C Issuer, an opinion of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Borrower, the other Nexstar Entities and the Mission Entities, addressed to the Borrower L/C Issuer, the Administrative Agent, the Collateral Agent and Guarantorsthe Lenders and permitted to be relied upon by any persons who become Lenders pursuant to this Incremental Amendment, in each case dated the Effective Date, addressed form and substance reasonably satisfactory to the Administrative Agent and the Lenders and reasonably satisfactory customary for senior secured credit facilities in transactions of this kind (including a customary no conflicts opinion consistent with that provided pursuant to the Administrative Agent;Section 4.01(g)),
(ivd) the Administrative Agent shall have received (x) 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 Incremental Amendment, (y) a certificate of a Responsible Officer of the boards of directors or other appropriate governing body Borrower certifying (or of the appropriate committee thereofA) as to compliance with clauses (i) through (iii) of the Borrower and each Guarantor certified by its secretary or assistant secretary as proviso to Section 2.14(a) of the Effective Date, Credit Agreement and (B) attaching the resolutions adopted by the Borrower approving this Amendment, adopting or consenting to the Loan Documents to be executed by such Person, Incremental Amendment and authorizing (z) a certificate of a Responsible Officer of the execution and delivery thereofBorrower designating the Tranche A Revolving Commitments as “Refinancing Revolving Commitments”;
(ve) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower an amended and each Guarantor, certified restated Revolver Reallocation Letter duly executed by the secretary or assistant secretary of such Borrower or GuarantorConsenting Revolving Lenders and the Additional Revolving Lenders;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixf) the Administrative Agent shall have received a Borrowing Loan Notice on or prior to the Second Incremental Amendment Closing Date;
(g) the representations and warranties set forth in respect this Incremental Amendment shall be true and correct in all material respects as of the Extended Term Loans date of this Incremental Amendment (except
(1) to the extent that such representations and warranties specifically refer to an earlier date, in each which case requested to 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 made on the Effective Date true and correct in accordance with the Credit Agreement (after giving effect to this Amendmentall respects);
(xh) the Mission Credit Agreement shall be amended on substantially similar terms for the Mission Borrower shall have purchased, defeased, discharged or redeemed at least 80% of as the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notesterms set forth in this Incremental Amendment;
(xii) the Borrower Administrative Agent shall have repaid the received a Term Loans under the Credit Agreement to the extent contemplated B-2 Loan Note executed by the “Borrower in favor of each Lender Commitments” section of the requesting a Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; andB-2 Loan Note;
(xiij) the Administrative Agent shall have received a Revolving Credit Note executed by the Borrower in favor of each Additional Revolving Lender requesting a Revolving Credit Note;
(k) the Administrative Agent shall have received evidence that of payment of all fees payable by required to be paid on the Second Incremental Amendment Closing Date pursuant to the Second Incremental Amendment Arranger Fee Letter;
(l) the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, shall have been paid in full, including the all reasonable invoiced fees and expenses of counsel to the Administrative Agent’s counsel, ▇▇▇▇▇▇▇▇ PC, and the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting shall have received evidence of payment of all other reasonable estimates of such fees and documented out-of-pocket costs and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such (including, without limitation, legal fees and expenses) in each case that have been invoiced prior to the extent agreed upon in effective date of this Incremental Amendment. Simultaneously with effectiveness, (i) the Engagement LetterRevolving Credit Lenders under the Existing Credit Agreement shall have been paid all accrued fees on their Revolving Credit Commitments to, dated March 31but not including, 2010the Second Incremental Amendment Closing Date and (ii) the Revolving Credit Lenders under the Existing Credit Agreement shall have been paid all accrued and unpaid interest on their outstanding Revolving Credit Loans to, among but not including, the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Second Incremental Amendment Closing Date.
Appears in 2 contracts
Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Conditions to Effectiveness. This The effectiveness of this Amendment and the obligations of the Incremental Term B-1 Lenders to make the Incremental Term B-1 Loans shall become effective upon on the date Amendment No. 1 Effective Date, which shall be the first Business Day on which each of the following shall have been received conditions are satisfied or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientwaived:
(i) the Administrative Agent (or its counsel) shall have received counterparts of this AmendmentAmendment that, executed and delivered by a duly authorized officer when taken together, bear the signatures of (aA) Holdings, (B) the Borrower and Borrower, (bC) each Subsidiary Loan Party, (D) the Required Lenders and (including, in any event, vii) each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentIncremental Term B-1 Lender;
(ii) the Administrative Agent shall have received an acknowledgment and consent notice of Borrowing for the Incremental Term B-1 Loans (“Acknowledgment and Consent”), substantially whether in writing or by telephone) meeting the form requirements of Exhibit B hereto, duly executed and delivered by each GuarantorSection 2.03 of the Credit Agreement;
(iii) the Administrative Agent Agent’s receipt of the following, each of which shall have received the favorable written opinion be originals or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:
(A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, a written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to for the Borrower and Guarantors, in each case dated the Effective Date, Loan Parties (addressed to the Administrative Agent and each Existing Lender and Incremental Term B-1 Lender on the Lenders and reasonably satisfactory Amendment No. 1 Effective Date), as to matters substantially similar to those covered in the Administrative Agentcorresponding opinion delivered on the Effective Date;
(ivB) the Administrative Agent shall have received resolutions a certificate of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary Loan Party as of the Amendment No. 1 Effective Date, approving this Amendmentdated the Amendment No. 1 Effective Date, adopting substantially in the Loan Documents form of Exhibit G to be the Credit Agreement or such other form reasonably acceptable to the Administrative Agent with appropriate insertions, executed by any Responsible Officer of such PersonLoan Party, and authorizing attaching the execution and delivery thereof;documents referred to in clause (C) below; and
(vC) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf (i) resolutions of the Borrower Board of Directors and/or similar governing bodies of each Loan Party approving and each Guarantorauthorizing (a) the Additional Specified Dividend, (b) the execution, delivery and performance of the Amendment (including the reaffirmations set forth herein) (and any agreements relating thereto) to which it is a party and (c) in the case of the Borrower, the extensions of credit contemplated hereunder, certified as of the Amendment No. 1 Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and 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’s jurisdiction of incorporation, organization or formation;
(iv) the Borrower shall have paid to the Administrative Agent for the account of each Existing Lender that delivers to the Administrative Agent (or its counsel), prior to 5:00 p.m. (New York City time) on December 4, 2012 (the “Delivery Time”), an executed counterpart of this Amendment indicating its consent to the amendments contained herein, a fee (the “Consent Fees”) in an amount equal to 0.125% of the sum of the aggregate outstanding principal amount of (x) Initial Term Loans and (y) the Revolving Credit Commitment (whether used or unused), of each Existing Lender immediately prior to the effectiveness hereof;
(v) the fees in the amounts previously agreed in writing by the secretary Incremental Term B-1 Arrangers to be received on the Amendment No. 1 Effective Date and all reasonable and documented or assistant secretary invoiced out-of-pocket costs and expenses (including the reasonable fees, charges and disbursements of such Borrower ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the Incremental Term B-1 Arrangers, and due diligence expenses) incurred in connection with the transactions contemplated hereby for which invoices have been presented at least one (1) Business Day prior to the Amendment No. 1 Effective Date shall, upon the Borrowing of the Incremental Term B-1 Loans, have been, or Guarantorwill be substantially simultaneously, paid in full (which amounts may be offset against the proceeds of the Incremental Term B-1 Loans);
(vi) the Administrative Agent shall have received any changes a certificate from the chief financial officer of the Borrower in the form of Exhibit H to the Organizational Documents Credit Agreement certifying as to the Solvency of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided its Restricted Subsidiaries on a consolidated basis after giving effect to the Administrative Agent prior to consummation of the Effective Datetransactions contemplated by the Amendment, certified as true the Borrowings of the Incremental Term B-1 Loans and correct by its secretary or assistant secretarythe use of proceeds therefrom (including the payment of the Additional Specified Dividend);
(vii) the Administrative Agent representations and warranties of each Loan Party set forth in the Section 6 of this Amendment shall have received any changes to the Operating Documents of the Borrower be true and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified correct in all material respects on and as of the Amendment No. 1 Effective Date as before and after giving effect to this Amendment No. 1 and the borrowing of the Incremental Term B-1 Loans and to the application of proceeds therefrom; provided that, to the extent that such representations and warranties specifically refer to an earlier date or period, they shall be true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued in all material respects as of a recent such earlier date by the Secretaries of State of the respective jurisdictions of formation of the Borrower or period; provided further that any representation and each Guarantor warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the due existence and good standing date of such Person;
(ix) borrowing or on such earlier date, as the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to may be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendmentsuch qualification);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiiviii) the Administrative Agent no Default or Event of Default shall have received evidence that all fees payable by occurred and be continuing or would result from the Borrower on incurrence of the Incremental Term B-1 Loans or before from the Effective Date to application of the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)proceeds therefrom.
Appears in 2 contracts
Sources: Amendment Agreement (Blue Buffalo Pet Products, Inc.), Amendment Agreement (Blue Buffalo Pet Products, Inc.)
Conditions to Effectiveness. This The effectiveness of this Amendment shall become effective upon is subject to the satisfaction in full of each of the conditions precedent set forth below (the date on which each of the following shall all such conditions have been received or waived by satisfied being herein called the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:“Amendment Effective Date”):
(iA) the Administrative Agent shall have received counterparts of this AmendmentAmendment which, executed and delivered by a duly authorized officer when taken together, bear the signatures of (a) the Borrower and (b) the Required Lenders (includingBorrower, in any eventHallmark Cards, each Lender providing a portion Guarantor and each of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentLenders;
(iiB) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially for the account of the Lenders a fee of $25,000 in consideration for the form extensions of Exhibit B hereto, duly executed and delivered by each Guarantorthe Maturity Date to be implemented hereunder;
(iiiC) the Administrative Agent representations and warranties in Section 4 hereof shall have received the favorable written opinion or opinions with respect to be true on the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of as if made on such date;
(AD) in-house all legal counsel matters incident to the Borrower and (B) Skadden, Arps, Slate, this Amendment shall be satisfactory to ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇, LLP, special counsel for the Agent;
(E) the Agent has received a fully-executed Recapitalized Debt Intercreditor Agreement in the form of Exhibit T to this Amendment;
(F) the prior or simultaneous consummation of the Recapitalization on terms and conditions satisfactory to the Borrower Agent including that (i) criteria set forth under the definition of Recapitalization as set forth in the Revised Credit Agreement are satisfied in connection therewith, (ii) that each Recapitalization Credit Document (as defined in the Revised Credit Agreement) is satisfactory in form and Guarantors, in each case dated the Effective Date, addressed substance to the Administrative Agent; and (iii) the Agent is satisfied with any and all liabilities of Hallmark Holdings and Hallmark Entertainment Investments Co., who are contemplated to be merged with and into the Lenders and reasonably Borrower in connection with the consummation of the Recapitalization;
(G) the Agent shall have received evidence satisfactory to it that Hallmark Cards and/or its Affiliates shall have, pursuant to documentation satisfactory to the Administrative Agent;
, extended through no earlier than the Maturity Date (ivas the same is being extended in the Revised Credit Agreement) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of license agreement which provides the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance Subsidiaries with the Credit Agreement (after giving effect right to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by use the “Lender CommitmentsHallmark” section of name and the Term Sheet provided “Crown” name in their respective television series or on or with respect to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) any channels owned or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable operated by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses any of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transactionits Subsidiaries; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).and
Appears in 2 contracts
Sources: Credit, Security, Guaranty and Pledge Agreement (Crown Media Holdings Inc), Credit, Security, Guaranty and Pledge Agreement (Crown Media Holdings Inc)
Conditions to Effectiveness. This Amendment Section 4.1. The amendments set forth in Section 1 and the waiver set forth in Section 2 shall become effective upon at the time the following conditions are satisfied to the Purchasers’ satisfaction (the date on which each of satisfaction of such conditions, the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:“Effective Date”):
(ia) the Administrative Agent The Purchasers shall have received one or more counterparts of this Amendment, executed Waiver and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly First Amendment executed and delivered by each Guarantorof the Issuers and Holdings;
(iiib) the Administrative Agent After giving effect to this Waiver and First Amendment, no Default or Event of Default shall have received occurred and be continuing as of the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby date of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agentthis Amendment;
(ivc) the Administrative Agent The representations and warranties of Issuers and Holdings contained in this Waiver and First Amendment shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower be true and each Guarantor certified by its secretary or assistant secretary correct in all material respects on and as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;.
(vd) The Issuers and Holdings shall have entered into an agreement with the Senior Lenders pursuant to which (i) Section 6.01(a) of the Senior Credit Agreement is amended in a manner consistent with Section 1.1 hereof, (ii) the Administrative Agent Senior Lenders waive the restrictions set forth in clause (a) of the definition of “Permitted Acquisition” in the Senior Credit Agreement so as to permit the Project Miami Acquisition and (iii) the Senior Lenders consent to the payment of the Amendment Fee and the Waiver Fee to Purchasers as set forth herein.
(e) The Issuers shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and paid to each Guarantor, certified Purchaser a non-refundable amendment fee in cash in an amount equal to 25 basis points multiplied by the secretary or assistant secretary outstanding amount of such Borrower or Guarantor;
(vi) the Administrative Agent Purchaser’s Note which shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or fully earned on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement LetterAmendment Fee”).
Appears in 2 contracts
Sources: Waiver and First Amendment (Medquist Inc), Credit Agreement (MedQuist Holdings Inc.)
Conditions to Effectiveness. This Incremental Amendment shall become effective upon the date on which each satisfaction of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientconditions set forth below:
(ia) there shall exist no Default both immediately before and after giving effect to this Incremental Amendment;
(b) the Administrative Agent shall have received a counterpart signature page to this Incremental Amendment, duly executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (includingBorrower, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent, each Guarantor, the owners of the Capital Stock of the Borrower (the “Pledgors”), the Revolving Credit Lenders electing to rollover their Revolving Credit Commitments into Tranche A Revolving Commitments, the Additional Revolving Lenders and the Term B-2 Lenders;
(iic) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)received, substantially in on behalf of itself, the form of Exhibit B heretoCollateral Agent, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received Lenders, the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date Nexstar Swing Line Lender and the transactions contemplated thereby Nexstar L/C Issuer, an opinion of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Borrower, the other Mission Entities and the Nexstar Entities, addressed to the Borrower Nexstar L/C Issuer, the Administrative Agent, the Collateral Agent and Guarantorsthe Lenders and permitted to be relied upon by any persons who become Lenders pursuant to this Incremental Amendment, in each case dated the Effective Date, addressed form and substance reasonably satisfactory to the Administrative Agent and the Lenders and reasonably satisfactory customary for senior secured credit facilities in transactions of this kind (including a customary no conflicts opinion consistent with that provided pursuant to the Administrative Agent;Section 4.01(g)),
(ivd) the Administrative Agent shall have received (x) 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 Incremental Amendment, (y) a certificate of a Responsible Officer of the boards of directors or other appropriate governing body Borrower certifying (or of the appropriate committee thereofA) as to compliance with clauses (i) through (iii) of the Borrower and each Guarantor certified by its secretary or assistant secretary as proviso to Section 2.14(a) of the Effective Date, Credit Agreement and (B) attaching the resolutions adopted by the Borrower approving this Amendment, adopting or consenting to the Loan Documents to be executed by such Person, Incremental Amendment and authorizing (z) a certificate of a Responsible Officer of the execution and delivery thereofBorrower designating the Tranche A Revolving Commitments as “Refinancing Revolving Commitments”;
(ve) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower an amended and each Guarantor, certified restated Revolver Reallocation Letter duly executed by the secretary or assistant secretary of such Borrower or GuarantorConsenting Revolving Lenders and the Additional Revolving Lenders;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixf) the Administrative Agent shall have received a Borrowing Loan Notice on or prior to the Second Incremental Amendment Closing Date;
(g) the representations and warranties set forth in respect this Incremental Amendment shall be true and correct in all material respects as of the Extended Term Loans date of this Incremental Amendment (except (1) to the extent that such representations and warranties specifically refer to an earlier date, in each which case requested to 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 made on the Effective Date true and correct in accordance with the Credit Agreement (after giving effect to this Amendmentall respects);
(xh) the Nexstar Credit Agreement shall be amended on substantially similar terms for the Nexstar Borrower shall have purchased, defeased, discharged or redeemed at least 80% of as the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notesterms set forth in this Incremental Amendment;
(xii) the Borrower Administrative Agent shall have repaid the received a Term Loans under the Credit Agreement to the extent contemplated B-2 Loan Note executed by the “Borrower in favor of each Lender Commitments” section of the requesting a Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; andB-2 Loan Note;
(xiij) the Administrative Agent shall have received a Revolving Credit Note executed by the Borrower in favor of each Additional Revolving Lender requesting a Revolving Credit Note;
(k) the Administrative Agent shall have received evidence that of payment of all fees payable by required to be paid on the Second Incremental Amendment Closing Date pursuant to the Second Incremental Amendment Arranger Fee Letter;
(l) the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, shall have been paid in full, including the all reasonable invoiced fees and expenses of counsel to the Administrative Agent’s counsel, ▇▇▇▇▇▇▇▇ PC, and the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting shall have received evidence of payment of all other reasonable estimates of such fees and documented out-of-pocket costs and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such (including, without limitation, legal fees and expenses) in each case that have been invoiced prior to the extent agreed upon in effective date of this Incremental Amendment. Simultaneously with effectiveness, (i) the Engagement LetterRevolving Credit Lenders under the Existing Credit Agreement shall have been paid all accrued fees on their Revolving Credit Commitments to, dated March 31but not including, 2010the Second Incremental Amendment Closing Date and (ii) the Revolving Credit Lenders under the Existing Credit Agreement shall have been paid all accrued and unpaid interest on their outstanding Revolving Credit Loans to, among but not including, the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Second Incremental Amendment Closing Date.
Appears in 2 contracts
Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Conditions to Effectiveness. This Amendment shall become effective upon as of the date on which each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i)first written above when, (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:only when,
(ia) the Administrative Agent shall have received received:
(i) counterparts of this Amendment, Amendment duly executed and delivered by a duly authorized officer of (a) the Borrower Borrowers, the Subsidiary Guarantors, the Administrative Agent and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentLenders;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of the secretary or an assistant secretary of each Borrower and the Subsidiary Guarantors, as the Administrative Agent shall may timely request to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment, including a certificate certifying and attaching the resolutions adopted by each Borrower approving or consenting to the Extension (or if the Borrowers’ resolutions delivered pursuant to Section 4.01(a)(iii) of the Credit Agreement provided for the Extension, certifying that such resolutions have received an acknowledgment not been amended, modified or rescinded and consent remain in full force and effect);
(iii) such evidence as the Administrative Agent may reasonably request to verify that each Loan Party is duly organized or formed, validly existing and in good standing in the jurisdiction where organized;
(iv) a certificate dated as of the date hereof signed by a Responsible Officer of the Parent Borrower (1) certifying as to the matters set forth in Section 4(a) and Section 4(b) above and (2) attaching, and certifying that such attachment is a true, correct and complete copy of, that certain Note Purchase Agreement dated as of the date hereof (the “Acknowledgment and ConsentNote Purchase Agreement”), substantially in by and among the form of Exhibit B heretoParent Borrower and the purchasers party thereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment parties thereto and related Loan Documents executed on the Effective Date in form and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and substance reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;; and
(v) counterparts of that certain Amended and Restated Subordination Agreement by and among the Borrowers, the Loan Parties and EEP in favor of the Administrative Agent shall have received specimen signatures and the other holders of officers or other appropriate representatives executing Senior Indebtedness substantially in the Loan Documents on behalf form of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;Annex A attached hereto; and
(vib) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Parent Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreementi) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement paid all fees it has agreed to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders pay in connection with this Amendment, using cash on hand (not resulting from borrowings under including, without limitation, the Credit Agreement) or proceeds fees set forth in that certain letter dated August 12, 2014 from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Parent Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (ii) reimbursed or their affiliates) in connection with this Amendmentpaid, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent timely invoiced at least one (1) Business Day prior to or on to, and reviewed by, the Effective Date (which may include amounts constituting reasonable estimates of such fees and Parent Borrower, all out-of-pocket expenses incurred or required to be incurred in connection with reimbursed or paid by the transaction; provided that no such estimate shall thereafter preclude Parent Borrower under the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Midcoast Energy Partners, L.P.)
Conditions to Effectiveness. This Amendment shall become effective upon The effectiveness of this Agreement on the date on which each Closing Date was subject to satisfaction or waiver pursuant to Section 11.01 of the following shall have been received or waived by the conditions precedent:
(a) The Administrative Agent in its discretion (except that the Administrative Agent may not waive Agent’s receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientfollowing:
(i) executed counterparts of this Agreement (including the related Lender Addenda), the Guarantee and Collateral Agreement and the Perfection Certificate by each of the parties thereto, together with:
(A) certificates representing the Pledged Equity accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank or with other instruments of transfer and all other documents or agreements required by the Guarantee and Collateral Agreement, and
(B) UCC financing statements relating to the Collateral in form appropriate for filing under the Uniform Commercial Code of each jurisdiction where any Loan Party is organized naming such Loan Party as debtor and the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;as secured party.
(ii) a Note executed by the Administrative Agent shall have received an acknowledgment and consent Borrowers in favor of each Lender that has requested a Note at least three Business Days prior to the Closing Date;
(“Acknowledgment and Consent”)iii) a certificate of each Loan Party, dated the Closing Date, substantially in the form of Exhibit B heretoI, duly executed with appropriate insertions and delivered by each Guarantorattachments;
(iiiiv) “long form” good standing certificates of each Loan Party in its jurisdiction of organization and, to the extent reasonably requested by the Administrative Agent shall have received Agent, bring-down good standing certificates of the Loan Parties;
(v) a favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) SkaddenG▇▇▇▇▇, Arps, Slate, D▇▇▇ & C▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective DateLoan Parties, addressed to the Administrative Agent and each Lender, as to the Lenders matters set forth in Exhibit G;
(vi) a certificate signed by a Responsible Officer of the Parent Borrower certifying that the conditions specified in Sections 4.01(f) and reasonably 4.02 have been satisfied;
(vii) a certificate from the chief financial officer of the Borrowers which shall certify to the solvency of the Borrowers and its Subsidiaries considered as a whole;
(viii) certificates of insurance, 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 maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(ix) the results of a recent lien search in each of the jurisdictions where assets of the Loan Parties are located, and such search shall reveal no liens on any of the assets of the Loan Parties except for Permitted Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent;
(ivx) evidence that the Administrative Agent shall Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all amounts due and owing thereunder are being repaid in full and all Liens securing obligations under the Existing Credit Agreement have received resolutions been, or concurrently with the Closing Date are being, released; and
(xi) evidence that the Senior Notes and the Holdco Senior Notes have been amended on or concurrently with the Closing Date to, among other things, extend the final maturity of the boards of directors or other appropriate governing body Senior Notes to August 20, 2018.
(or of the appropriate committee thereofb) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents All fees required to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided paid to the Administrative Agent prior to and the Effective Date, certified as true and correct by its secretary Joint Bookrunners on or assistant secretary;before the Closing Date shall have been paid.
(viic) the Administrative Agent The Borrowers shall have received any changes to paid the Operating Documents reasonable and documented fees and out-of-pocket disbursements of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Effective Closing Date.
(d) There shall be no material indebtedness of the Borrowers or the Guarantors (other than under the Loan Documents, the Term Loan Facility, the Holdco Senior Notes and the Senior Notes), except as set forth on Schedule 7.01.
(e) If any Credit Extensions are to be made on the Closing Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date Request for Credit Extension in accordance with the Credit Agreement (after giving effect to this Amendment);requirements hereof.
(xf) the Borrower Since October 1, 2011, no Material Adverse Effect shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;occurred.
(xig) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the The Administrative Agent shall have received evidence that a Borrowing Base Certificate dated as of a recent date, related to the month ended August 25, 2012, and executed by a Responsible Officer of the Parent Borrower. After giving effect to (i) any funding of the Loans on the Closing Date and (ii) and all fees payable by Letters of Credit to be issued at, or immediately subsequent to, the Borrower on or before the Effective Date Closing Date, Excess Availability shall be not less than $75,000,000.
(h) The Administrative Agent shall have received and be satisfied with a field exam and inventory appraisal from an appraiser reasonably acceptable to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 2 contracts
Sources: Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.)
Conditions to Effectiveness. This Second Amendment shall will become effective upon as of the date on which each of the following shall have been received or waived hereof upon receipt by the Administrative Agent in its discretion of the following:
(except that a) fully-executed original counterparts of this Second Amendment executed by the Borrower, the Lenders and the Administrative Agent;
(b) the receipt by the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) a signed certificate from a Responsible Officer of this Section 4), each the Borrower in form and substance satisfactory to the applicable recipient:
Administrative Agent and dated the date hereof certifying (i) as to the incumbency of, and bearing manual specimen signatures of, the Responsible Officers of the Borrower or other authorized persons who are authorized to execute and take actions under this Second Amendment and the Loan Documents for the Borrower (or a certification from such Responsible Officer that the Responsible Officers and other persons who were identified in the certificate dated July 17, 2017 and delivered to the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (apursuant to Section 5(b) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended FacilitiesAmendment No. 1 to the Credit Agreement dated as of July 17, 2017 by and among the Borrower, the Lenders and the Administrative Agent the (the "First Amendment Closing Certificate"), together with all schedules remain authorized to execute and exhibits hereto take actions under this Second Amendment and acknowledged by the Administrative Agent;
Loan Documents), (ii) and attaching the Administrative Agent shall have received an acknowledgment and consent Organizations Documents of the Borrower (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect a certification from such Responsible Officer that no changes to the Amendment and related Loan Organizational Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel have been made to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed any such documents since such documents were delivered to the Administrative Agent and attached to the Lenders First Amendment Closing Certificate), (iii) and reasonably satisfactory attaching the Custody Agreement of the Borrower (or a certification from such Responsible Officer that no changes have been made to the Custody Agreement delivered to the Administrative Agent;
Agent and attached to the First Amendment Closing Certificate), (iv) to and attaching a copy of the Administrative Agent shall have received resolutions of the boards board of directors or other appropriate governing body (or of the appropriate committee thereof) trustees of the Borrower approving and each Guarantor certified by its secretary or assistant secretary as of adopting this Second Amendment and the Effective Date, approving this Amendment, adopting documents being delivered in connection herewith to which the Loan Documents to be executed by such Person, Borrower is a party and authorizing the execution and delivery thereof, certified by a Responsible Officer of the Borrower to be true and correct and in force and effect as of the date hereof, and (v) that, before and after giving effect to the transactions contemplated hereby, (1) the representations and warranties made by the Borrower herein, in the Credit Agreement and each of the other Loan Documents are true and correct on and as of the date hereof, and with the same force and effect as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), and (2) no Default or Event of Default has occurred and is continuing;
(vc) the Administrative Agent shall have received specimen signatures a certificate of officers or other appropriate representatives executing the Loan Documents on behalf of good standing and legal existence for the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by from the Secretaries Secretary of State of the respective jurisdictions Commonwealth of formation of the Borrower and each Guarantor as to the due existence and good standing of such PersonMassachusetts;
(ixd) the Administrative Agent shall have received a Borrowing Notice in respect legal opinion dated as of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchaseddate hereof, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement in-house to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided Borrower, in form and substance reasonably satisfactory to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesLender; and
(xiie) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the payment of any fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or required to be incurred paid in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Voya PRIME RATE TRUST), Credit Agreement (Voya PRIME RATE TRUST)
Conditions to Effectiveness. This Amendment shall become effective upon as of the date on which each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i)first written above when, (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:only when,
(ia) the Administrative Agent shall have received received:
(i) counterparts of this Amendment, Amendment fully executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agentsignatory hereto;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form opinion of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and each Lender party to the Lenders Amended Credit Agreement, in form and substance reasonably satisfactory to the Administrative AgentAgent as to such customary matters regarding this Amendment as the Administrative Agent may reasonably request;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of the secretary or an assistant secretary of the General Partner or the Delegate, as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment; and
(iv) such evidence as the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of may reasonably request to verify that the Borrower is duly organized or formed, validly existing and each Guarantor certified by its secretary or assistant secretary as of in good standing in the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;jurisdiction where organized; and
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(xb) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreementi) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement paid all fees it has agreed to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders pay in connection with this Amendment, using cash on hand including, without limitation, the fees set forth in that certain letter dated January 11, 2013 from the Borrower to the Administrative Agent regarding “Increase of Commitments and Accordion Feature” and (not resulting from borrowings ii) reimbursed or paid, to the extent timely invoiced to, and reviewed by, the Borrower, all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Enbridge Energy Partners Lp)
Conditions to Effectiveness. This Amendment Agreement shall become effective on the Effective Date and enforceable against the parties hereto upon the date on which each occurrence of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientconditions precedent:
(ia) the The Administrative Agent shall have received multiple original counterparts, as requested by the Administrative Agent, of this AmendmentAgreement, duly and validly executed and delivered by a duly authorized officer officers of (a) the Borrower Borrower, the Guarantors, the Administrative Agent, the Issuing Lender and all of the Lenders.
(b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the The Administrative Agent shall have received a Borrowing Notice Note payable to each Lender requesting a Note in respect the amount of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (its Commitments after giving effect to this Amendment);Agreement, duly and validly executed and delivered by duly authorized officers of the Borrower.
(xc) The Borrower shall have paid (a) all reasonable out-of-pocket costs and expenses that have been invoiced and are payable pursuant to Section 9.1 of the Credit Agreement, and (b) if any Lender’s share of the allocated Borrowing Base in effect on the Effective Date after giving effect to the increase set forth in Section 4 above and the reallocation set forth in Section 2 above (such Lender’s “New Allocation”) shall be greater than such Lender’s share of the allocated Borrowing Base in effect immediately prior to the increase set forth in Section 4 above and the reallocation set forth in Section 2 above (such Lender’s “Existing Allocation”), the Borrower shall pay to the Administrative Agent, for the account of such Lender, a fee equal to 0.45% of the difference between (i) such Lender’s New Allocation and (ii) such Lender’s Existing Allocation.
(d) The Administrative Agent shall have purchasedreceived duly executed Mortgages, defeasedor supplements to existing Mortgages, discharged or redeemed in form and substance reasonably satisfactory to the Administrative Agent encumbering not less than 90% (by PV10) of the Credit Parties’ Proven Reserves and 90% (by PV10) of the Credit Parties’ PDP Reserves, in each case, as described in the most recently delivered Engineering Report.
(e) The Administrative Agent shall have received satisfactory title information and be satisfied in its sole discretion with the title to the Oil and Gas Properties included in the Borrowing Base, and that such Oil and Gas Properties constitute (i) at least 80% of the aggregate principal amount outstanding PV10 of the Year 2006 Senior Notes using cash on hand Proven Reserves of the Borrower and its Subsidiaries evaluated in the most recently delivered Independent Engineering Report, and (not resulting from borrowings under ii) that the Credit Agreement) or proceeds from the Year 2010 Senior Notes;Borrower has good and marketable title to its Oil and Gas Properties, subject to no other liens (other than Permitted Liens).
(xif) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the The Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agentsuch other documents, JPMorgan governmental certificates, agreements, and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to lien searches as the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which any Lender may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)reasonably request.
Appears in 2 contracts
Sources: Amendment No. 2 and Agreement (Jagged Peak Energy Inc.), Amendment No. 2 and Agreement (Jagged Peak Energy Inc.)
Conditions to Effectiveness. This Amendment shall become effective upon as of the date first written above (provided that, as set forth therein, Section 4 shall become effective on which each September 4, 2015 if all of the following shall conditions have then been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i)satisfied) when, (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:only when,
(ia) the Administrative Agent shall have received received:
(i) counterparts of this Amendment, Amendment duly executed and delivered by a duly authorized officer of (a) the Borrower Borrowers, the Subsidiary Guarantors, the Administrative Agent and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentLenders;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of the secretary or an assistant secretary of each Borrower and the Subsidiary Guarantors, as the Administrative Agent shall have received an acknowledgment may timely request to establish the identities of and consent (“Acknowledgment verify the authority and Consent”), substantially in the form capacity of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect Responsible Officer thereof authorized to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary act as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders Responsible Officer in connection with this Amendment, using cash on hand including a certificate certifying and attaching the resolutions adopted by each Borrower approving or consenting to the Extension (not resulting from borrowings under or if the Borrowers’ resolutions delivered pursuant to Section 4.01(a)(iii) of the Credit AgreementAgreement provided for the Extension, certifying that such resolutions have not been amended, modified or rescinded and remain in full force and effect);
(iii) such evidence as the Administrative Agent may reasonably request to verify that each Loan Party is duly organized or proceeds from formed, validly existing and in good standing in the Year 2010 Senior Notesjurisdiction where organized; and
(xiiiv) a certificate dated as of the date hereof signed by a Responsible Officer of the Parent Borrower certifying as to the matters set forth in Sections 5(a) and (b) above; and
(b) the Administrative Agent Parent Borrower shall have received evidence that (i) paid all fees payable by the Borrower on or before the Effective Date it has agreed to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) pay in connection with this Amendment, have been paid in fullincluding, including without limitation, the fees and expenses of counsel set forth in that certain letter dated July 21, 2015 from the Parent Borrower to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and (ii) reimbursed or paid, to the extent timely invoiced to, and reviewed by, the Parent Borrower, all out-of-pocket expenses required to be reimbursed or paid by the Parent Borrower (under the “Engagement Letter”)Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Midcoast Energy Partners, L.P.), Credit Agreement and Extension Agreement
Conditions to Effectiveness. 4.1 This Amendment shall become effective upon the date on which each satisfaction of the following shall have been received conditions precedent (the date of satisfaction of all such conditions being referred to herein as the Amendment Effective Date):
(a) the Obligors delivering to the Lender an electronic or waived by the Administrative Agent in its discretion facsimile executed copy (except that the Administrative Agent may not waive receipt with subsequent delivery of clauses (i), (ii), (iii), (iv), (x), (xi) and (xiioriginally executed copies) of this Section 4)Amendment;
(b) the Obligors delivering to the Lender an electronic or facsimile executed copy (with subsequent delivery of originally executed copies) of a certificate, each in form and substance satisfactory to the applicable recipient:
Lender, from a knowledgeable senior officer of each Obligor certifying in such person’s official capacity (and not in an individual capacity and without personal liability) that, inter alia, immediately after, the Amendment Effective Date, (i) the Administrative Agent shall have received this Amendmentno Default or Event of Default has occurred and is continuing, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment representations and consent (“Acknowledgment and Consent”), substantially warranties in the form Finance Documents are true and correct in all respects, except to the extent such representations and warranties specifically refer to an earlier date, in which case, they shall be true and correct in all respects as of Exhibit B heretosuch earlier date, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall Obligors on a consolidated basis are in pro forma compliance with the financial covenants set forth in Section 20 of the Facility Agreement (with calculations attached thereto);
(c) the Obligors delivering to the Lender an electronic or facsimile executed copy (with subsequent delivery of two originally executed copies) of a bring down officer’s certificate from each Obligor, in form and substance, and on terms and conditions, satisfactory to the Lender, and confirming certain matters of fact, to which are attached true and complete copies of their respective certified constitutive documents, operating agreements, certificates of incumbency (or satisfactory confirmation that no changes have received been made to such instruments since the favorable written opinion most recent delivery of such instruments to the Lender) and resolutions adopted on or opinions with respect prior to the Amendment and related Loan Documents executed on the Effective Date and approving the transactions contemplated thereby of terms hereof;
(Ad) in-house legal counsel the Borrower delivering to the Borrower Security Agent updated UCC, PPSA and other searches and other evidence reasonably satisfactory to the Security Agent that the Transaction Security is the only Security over any of its assets, except Permitted Security;
(Be) Skadden, Arps, Slate, the Obligors delivering to the Lender a certificate of status or good standing (or other equivalent) for the jurisdiction of incorporation of each Obligor;
(f) the Obligors delivering to the Lender an electronic or facsimile executed copy (with subsequent delivery of originally executed copies) of a customary legal written opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(ivg) the Administrative Agent Lender shall have received resolutions executed copies of the boards documents and copies of directors or all other appropriate governing body (or of the appropriate committee thereof) of the Borrower deliverables set forth in this Amendment and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereofExhibit B;
(vh) within 10 Business Days of the Administrative Agent date hereof the Lender shall have received specimen signatures an executed copy of officers or other appropriate representatives executing a Utilization Request in an amount sufficient to repay the Loan Documents on behalf Shoreline Promissory Note and within 7 Business Days of the Borrower date hereof copies of all other deliverables set forth in Part 1 - Exhibit C and each Guarantor, certified by within 30 Business Days of the secretary or assistant secretary date hereof copies of such Borrower or Guarantorall other deliverables set forth in Part 2 - Exhibit C ;
(vii) the Administrative Agent no event shall have received any changes occurred or circumstance exist that has, or could reasonably be expected to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Datehave, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesMaterial Adverse Effect; and
(xiij) the Administrative Agent shall have received evidence that Borrowers and each other Obligor paying all accrued and unpaid fees payable by and expenses of the Borrower on or before the Effective Date to the Administrative AgentLender (including, JPMorgan and the Lenders (or their affiliates) in connection with this Amendmentwithout limitation, have been paid in full, including the fees and expenses of counsel to and the Administrative Agent to fees set out in the extent invoiced at least one (1Fee Letter) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling negotiation, preparation and execution of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan this Amendment and the Borrower (consummation of the “Engagement Letter”)transactions contemplated hereby.
Appears in 2 contracts
Sources: Facility Agreement (Klondex Mines LTD), Facility Agreement (Klondex Mines LTD)
Conditions to Effectiveness. This The effectiveness of this Second Amendment (other than the amendments to the Credit Agreement set forth in Section 3 hereof, which shall become effective upon as of the date on which each Consolidated Amendment Date (as defined below)) is subject to the satisfaction of the following conditions precedent:
(i) the Agent shall have received counterparts of this Second Amendment that, when taken together, bear the signatures of the Obligors, the Agent and the Required Lenders;
(ii) prior to and after giving effect to this Second Amendment, (A) there shall exist no Default or Event of Default and (B) all representations and warranties of the Obligors contained herein or in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier specified date, in which case such representations and warranties shall have been received or waived by true and correct in all material respects as of the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), date when made;
(iii)) the Agent shall have received an executed copy of the merger agreement pursuant to which the PAMT Merger will be consummated, together with all schedules, exhibits and annexes thereto, each of which shall be reasonably satisfactory in substance and form to the Agent, certified by an Authorized Officer of the Borrower as being true, correct and complete and in full force and effect;
(iv)) the Agent shall have received a pro forma balance sheet of PAMT, (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereofRequired Lenders;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing (A) for the Loan Documents on behalf benefit of the Borrower and each GuarantorLenders, certified the fees required to be paid by the secretary Borrower pursuant to Section 6 below, (B) for the benefit of PNC Capital Markets LLC (the “Lead Arranger”), the fees required to be paid by the Borrower pursuant to the Second Amendment Fee Letter, dated as of August 5, 2013, among the Agent, the Lead Arranger and the Borrower, (C) all documented out-of-pocket expenses (including reasonable fees and disbursements of counsel to the Agent) in connection with the preparation, negotiation and effectiveness of this Second Amendment and the other documents being executed or assistant secretary of such delivered in connection herewith, and (D) any other amounts due and payable by the Borrower hereunder or Guarantor;under the Credit Agreement on or prior to the Second Amendment Effective Date; and
(vi) the Administrative Agent shall have received any changes such additional documents, instruments and information as the Agent may reasonably request to effect the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent transactions contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)hereby.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Parametric Sound Corp)
Conditions to Effectiveness. This Third Amendment shall will become effective upon as of the date on which each of the following shall have been received or waived hereof upon receipt by the Administrative Agent in its discretion of the following:
(except that a) fully-executed original counterparts of this Third Amendment executed by the Borrower, the Lenders and the Administrative Agent;
(b) the receipt by the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) a signed certificate from a Responsible Officer of this Section 4), each the Borrower in form and substance satisfactory to the applicable recipient:
Administrative Agent and dated the date hereof certifying (i) as to the incumbency of, and bearing manual specimen signatures of, the Responsible Officers of the Borrower or other authorized persons who are authorized to execute and take actions under this Third DB3/ 202713434.2 Amendment and the Loan Documents for the Borrower (or a certification from such Responsible Officer that the Responsible Officers and other persons who were identified in the certificate dated July 16, 2018 and delivered to the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (apursuant to Section 5(b) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended FacilitiesAmendment No. 2 to the Credit Agreement dated as of July 16, 2018 by and among the Borrower, the Lenders and the Administrative Agent the (the "Second Amendment Closing Certificate"), together with all schedules remain authorized to execute and exhibits hereto take actions under this Third Amendment and acknowledged by the Administrative Agent;
Loan Documents), (ii) and attaching the Administrative Agent shall have received an acknowledgment and consent Organizations Documents of the Borrower (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect a certification from such Responsible Officer that no changes to the Amendment and related Loan Organizational Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel have been made to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed any such documents since such documents were delivered to the Administrative Agent and attached to the Lenders Second Amendment Closing Certificate), (iii) and reasonably satisfactory attaching the Custody Agreement of the Borrower (or a certification from such Responsible Officer that no changes have been made to the Custody Agreement delivered to the Administrative Agent;
Agent and attached to the Second Amendment Closing Certificate), (iv) to and attaching a copy of the Administrative Agent shall have received resolutions of the boards board of directors or other appropriate governing body (or of the appropriate committee thereof) trustees of the Borrower (the "Resolutions") approving and each Guarantor certified by its secretary or assistant secretary as of adopting this Third Amendment and the Effective Date, approving this Amendment, adopting documents being delivered in connection herewith to which the Loan Documents to be executed by such Person, Borrower is a party and authorizing the execution and delivery thereof, certified by a Responsible Officer of the Borrower to be true and correct and in force and effect as of the date hereof, and (v) that, before and after giving effect to the transactions contemplated hereby, (1) the representations and warranties made by the Borrower herein, in the Credit Agreement and each of the other Loan Documents are true and correct on and as of the date hereof, and with the same force and effect as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), and (2) no Default or Event of Default has occurred and is continuing;
(vc) the Administrative Agent shall have received specimen signatures a certificate of officers or other appropriate representatives executing the Loan Documents on behalf of good standing and legal existence for the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by from the Secretaries Secretary of State of the respective jurisdictions Commonwealth of formation of the Borrower and each Guarantor as to the due existence and good standing of such PersonMassachusetts;
(ixd) the Administrative Agent shall have received a Borrowing Notice in respect legal opinion dated as of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchaseddate hereof, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement in-house to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided Borrower, in form and substance reasonably satisfactory to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesLender; and
(xiie) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the payment of any fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or required to be incurred paid in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Voya PRIME RATE TRUST), Credit Agreement (Voya PRIME RATE TRUST)
Conditions to Effectiveness. This Amendment shall become effective upon the date on which satisfaction of each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientconditions precedent:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect counterpart signature page to this Amendment)Amendment duly executed and delivered by the Borrower, the Parent, and the Required Lenders;
(xb) the Borrower shall have purchasedpaid to the Administrative Agent, defeasedfor the PRO RATA account of each of the Lenders which shall have returned to the Administrative Agent an executed signature page to this Amendment on or prior to May 26, discharged or redeemed at least 80% 2005, an amendment fee in an amount equal to fifteen hundredths of one percent (0.15%) of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notessuch Lenders' Commitment;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiic) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel reasonably satisfactory to the Administrative Agent that all corporate action necessary for the valid execution, delivery and performance by the Borrower and the Parent, as applicable, of (i) this Amendment and the transactions contemplated hereby and (ii) the HoldCo Floating Rate Note Documents and the transactions contemplated thereby, shall have been duly and effectively taken;
(d) the Administrative Agent shall have received a copy, certified by a duly authorized officer of the Parent to be true and complete on the date hereof, of the HoldCo Floating Rate Note Indenture and all documents executed and delivered by the Parent in connection therewith;
(e) the Administrative Agent shall have received copies of all legal opinions executed and delivered by counsel to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred Parent in connection with the transaction; provided issuance of the HoldCo Floating Rate Notes, which opinions shall provide that no the Agents and the Lenders may rely on each such estimate legal opinion, other than opinions relating to Section 10(b)(5) of the Securities Act of 1934 (or if such legal opinions do not contain such a provision, the Administrative Agent shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case also receive a reliance letter addressed to the extent agreed upon Agents and the Lenders in the Engagement Letter, dated March 31, 2010, among form and substance reasonably satisfactory to the Administrative AgentAgent with respect to each such legal opinion); and
(f) contemporaneously upon the earlier of (i) the issuance of the HoldCo Floating Rate Notes, JPMorgan and or (ii) the Borrower (effectiveness of the “Engagement Letter”)first purchase of Capital Stock under the 2005 ECC Stock Tender Offer.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Conditions to Effectiveness. This Amendment The effectiveness of each Transaction shall become effective upon be subject to the date on which satisfaction of each of the conditions precedent for such Transaction specified in the Master Repurchase Agreement and the satisfaction of each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of additional conditions: (a) the Borrower and a valid Addition Notice has been timely delivered to GS; (b) in the Required Lenders case of the first Transaction hereunder: (including1) the “Closing Date” under and as defined in the Security Indenture shall have occurred, in any event, each Lender providing and the Seller shall have acquired a portion of the Extended Facilities), together with all schedules Eligible Security in an amount equal to the Purchased Security Notional Amount for such Transaction; and exhibits hereto and acknowledged by the Administrative Agent;
(ii2) the Administrative Agent Counterparty shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in initiated the form transfer to GS of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) a par amount of the Administrative Agent shall have received the favorable written opinion or opinions with respect Eligible Securities equal to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel Purchased Security Notional Amount for such Transaction pursuant to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereofParagraph 3(a) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date Master Repurchase Agreement for scheduled settlement substantially in accordance with the Credit Agreement then-current market practice in the principal market for such Security; (after giving effect to this Amendment);
(xc) in the Borrower case of each subsequent Transaction hereunder, the related “Increase” under the Security Indenture shall have purchasedoccurred, defeased, discharged or redeemed at least 80% and Counterparty shall have initiated the transfer to GS of a par amount of the aggregate principal amount outstanding Eligible Securities equal to the Purchased Security Notional Amount for such Transaction pursuant to Paragraph 3(a) of the Year 2006 Senior Notes using cash on hand Master Repurchase Agreement for scheduled settlement substantially in accordance with the then-current market practice in the principal market for such Security; (not resulting from borrowings d) no default or event of default with respect to Counterparty has occurred under the Credit AgreementMaster Repurchase Agreement and is then continuing; and (e) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans no Margin Deficit exists under the Credit Agreement Master Repurchase Agreement. GS shall prepare and deliver to Counterparty a revised Annex A (or another form setting forth information corresponding to that set forth on Annex A), reflecting the extent contemplated by terms of such Transaction, reasonably promptly following the “Lender Commitments” section satisfaction of the Term Sheet provided Conditions to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of Effectiveness for such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Transaction.
Appears in 2 contracts
Sources: Master Repurchase Agreement (FS Investment Corp III), Master Repurchase Agreement (FS Energy & Power Fund)
Conditions to Effectiveness. This Amendment shall become effective upon when, and only when and if:
(a) the date on which Administrative Agent (or its counsel) shall have received from (A) Lenders constituting (i) the Requisite Lenders and (ii) those Term B Lenders representing the entire amount of the Additional Term B Loan Commitment and (B) each of the following shall have been received other parties hereto, either (i) a counterpart of this Amendment signed on behalf of such party or waived (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) the representations and warranties set forth in Section 4 hereof are true and correct in all material respects;
(c) Borrower has paid the Administrative Agent (i) for the account of the Lenders, an amount equal to 0.125% of the aggregate principal amount of the Loans held by the Lenders who provide a consent (but not with respect to any Additional Term B Commitment) and (ii) all reasonable costs and expenses of the Administrative Agent in its discretion (except that connection with the Administrative Agent may not waive receipt of clauses (i)preparation, (ii), (iii), (iv), (x), (xi) execution and (xii) delivery of this Section 4)Amendment other instruments and documents to be delivered hereunder, each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders if any (including, in any eventwithout limitation, each Lender providing a portion the reasonable fees and expenses of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, SlateCahill Gordon & Reindel LL▇, ▇▇▇▇▇▇▇ & ▇▇ th▇ ▇▇▇▇ LLP▇▇istrative Agent) in accordance with the terms of Section 11.03 of the Credit Agreement;
(d) Borrower shall have paid the fees set forth in the arrangement letter related to this Amendment.
(e) all corporate and other proceedings taken or to be taken in connection with this Amendment and all documents incidental thereto, special counsel whether or not referred to the Borrower and Guarantorsherein, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and shall be reasonably satisfactory in form and substance to the Administrative Agent;
(ivf) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this the Amendment), no Default or Event of Default has occurred and is continuing;
(xg) the Borrower shall have purchased, defeased, discharged or redeemed received at least 80% $7.0 million of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or gross proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section issuance of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Additional Subordinated Notes; and
(xiih) the Borrower shall deliver any other certificates or documentation the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Quest Resource Corp), Credit Agreement (Quest Resource Corp)
Conditions to Effectiveness. This Amendment shall become effective upon on the date on which each of the following shall have been received or waived by conditions is satisfied (“Effective Date”):
(a) the Administrative Agent in Agent’s (or its discretion (except that the Administrative Agent may not waive counsel’s) receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4)the following, each in form and substance satisfactory to the applicable recipientof which shall be originals or electronic copies (followed promptly by originals) unless otherwise specified:
(i) executed counterparts of this Amendment from (A) Holdings and the Borrower (each signed by an Authorized Officer thereof) and (B) Revolving Lenders constituting Requisite Revolving Lenders; and
(ii) a Consent and Reaffirmation, dated as of the date hereof and executed by Holdings and each of the Subsidiary Loan Parties, whereby Holdings and each of the Subsidiary Loan Parties consents to this Amendment and reaffirms (A) its obligations and liabilities under the Loan Documents (as amended by this Amendment) and (B) each Lien, security interest and pledge granted by it to the Administrative Agent for the benefit of the Secured Parties under each of the Loan Documents to which it is a party;
(b) to the extent invoiced at least two (2) Business Days prior to the Effective Date or as set forth in a funds flow approved by the Borrower, all reasonable and documented out-of-pocket expenses due to the Administrative Agent, to the extent required to be paid on the Effective Date (including pursuant to Section 4 hereof), shall have been paid;
(c) at the time of and immediately after giving effect to this Amendment, no Default has occurred and is continuing or would result therefrom; and
(d) the representations and warranties made by each Loan Party set forth in Section 3 hereof, in Article III of the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects (or if qualified by materiality or reference to Material Adverse Effect, in all respects) with the same effect as if then made (unless expressly stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date). Without limiting the generality of the provisions of Section 8.02 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 2, each Lender party hereto shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each written notice from such Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment proposed Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by specifying its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Consolidated Communications Holdings, Inc.)
Conditions to Effectiveness. This Fourth Amendment shall become effective as of the date set forth above upon the date on which each satisfaction of the following shall have been received or waived by the Administrative Agent in its discretion conditions: (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(ia) the Administrative Agent shall have received counterparts of this Amendment, Fourth Amendment duly executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, and each Incremental Lender which is providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
Term Commitment pursuant to this Fourth Amendment; (iib) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form counterparts of Exhibit B hereto, this Fourth Amendment duly executed by the Borrower and delivered Limited and acknowledged by each Guarantor;
; (iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixc) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended fully-executed Term Loans in Loan Note for each case requested to be made on the Effective Date in accordance with the Credit Agreement Incremental Lender requesting a Term Loan Note; (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiid) the Administrative Agent shall have received evidence a completed Loan Notice in the form of Exhibit A to Annex II with respect to (i) the Revolving Loans subject to the Rate Conversion (as defined in Section 7 hereof) occurring on or after the Fourth Amendment Effective Date (as defined in the Amended Credit Agreement) and (ii) the Term Loans to be incurred on the Fourth Amendment Effective Date; (e) each of the conditions set forth in Section 4.02(a) and Section 4.02(b) of the Existing Credit Agreement shall have been satisfied; (f) the Administrative Agent shall have received a certificate of each of Limited and the Borrower dated as of the Increase Effective Date signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V of the Existing Credit Agreement and the other Loan Documents (i) that contain a materiality qualification, are true and correct, on and as of the Increase Effective Date and (ii) that do not contain a materiality qualification, are true and correct in all material respects, on and as of the Increase Effective Date, except 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 (or in the case of such representations and warranties that are subject to a materiality qualification, in all respects) as of such earlier date, and except that for purposes of Section 2.14 of the Existing Credit Agreement, the representations and warranties contained in subsection (a) of Section 5.05 of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clause (a) of Section 6.01 of the Existing Credit Agreement, and (B) no Default exists. (g) the Administrative Agent shall have received for its benefit and the benefit of each Incremental Lender and BofA Securities, Inc. the fees payable in immediately available funds as agreed upon by the Borrower on or before the Effective Date to Borrower, Limited, the Administrative Agent, JPMorgan BofA Securities, Inc. and the Lenders Incremental Lenders; (or their affiliatesh) the Administrative Agent shall have received all invoiced out of pocket fees and expenses due and owing in connection with this Fourth Amendment; and (i) unless waived by the Administrative Agent, have been paid in full, including the reasonable and documented legal fees and expenses of ▇▇▇▇▇▇▇▇▇ Traurig, LLP, counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among for the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).shall
Appears in 1 contract
Sources: Credit Agreement (Helen of Troy LTD)
Conditions to Effectiveness. (a) This Amendment Agreement shall become effective upon on the first date (the “Effective Date”) on which or after May 9, 2013, when, and only when, each of the following shall conditions have been received satisfied (or waived by waived) in accordance with the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientterms therein:
(i) the Administrative Agent this Agreement shall have received this Amendment, been executed and delivered by a duly authorized officer of (a) the Borrower Borrower, the other Credit Parties and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly fully executed and delivered by each GuarantorTranche B-1 Participation Notices from Participating Lenders representing 100% of the aggregate outstanding principal amount of the Existing Loans;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on a certificate of each Credit Party dated as of the Effective Date and the transactions contemplated thereby signed by an Authorized Officer of such Credit Party (i) (A) in-house legal counsel certifying and attaching the resolutions or similar consents adopted by such Credit Party approving or consenting to the Borrower and Tranche B-1 Loans, (B) Skaddencertifying that the certificate or articles of incorporation or formation and by-laws or operating (or limited liability company) agreement of such Credit Party either (x) have not been amended since the Closing Date or (y) are attached as an exhibit to such certificate, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel and (C) certifying as to the Borrower incumbency and Guarantorsspecimen signature of each officer executing this Agreement and any related documents on behalf of such Credit Party and (ii) in the case of the Borrower, in each case dated the Effective Date, addressed certifying as to the Administrative Agent matters set forth in clauses (vi), (vii) and the Lenders and reasonably satisfactory to the Administrative Agent(viii) below;
(iv) (A) all fees and out-of-pocket expenses required to be paid or reimbursed by the Administrative Agent Borrower in connection with this Agreement shall have received resolutions been paid or reimbursed and (B) all accrued interest and fees in respect of the boards Existing Loans outstanding immediately prior to effectiveness of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereofAgreement shall have been paid;
(v) the Administrative Agent shall have received specimen signatures an opinion of officers or other appropriate representatives executing ▇▇▇▇▇ Lovells US LLP, in form and substance reasonably satisfactory to the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or GuarantorAdministrative Agent;
(vi) both immediately before and after giving effect to the Effective Date and the incurrence of the Tranche B-1 Loans thereon, all representations and warranties made by each Credit Party contained in the Credit Agreement and in the other Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date);
(vii) the representations and warranties in Section 5 of this Agreement shall be true and correct in all material respects as of the Effective Date;
(viii) no Default or Event of Default shall exist on the Effective Date before or after giving effect to the effectiveness hereof and the incurrence of the Tranche B-1 Loans;
(ix) The Administrative Agent shall have received any changes a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Organizational Documents of Real Property Collateral (together with, to the extent applicable, a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Guarantor since the First Amendment Effective Date applicable Credit Party relating thereto).
(x) The Lenders shall have received on or since last provided to the Administrative Agent prior to the Effective Date, certified as true all documentation and correct other information reasonably requested by its secretary or assistant secretary;them in writing at least three (3) Business Days prior to the Effective Date in order to allow the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(viib) On the Effective Date, upon the satisfaction of the conditions set forth in Section 4(a) hereof, the outstanding amount of Initial Loans of each Converting Lender (or such lesser amount as may be allocated by the Lead Arranger and/or specified by such Converting Lender in its Tranche B-1 Participation Notice) shall be deemed to be exchanged for an equal outstanding amount of Tranche B-1 Loans under the Credit Agreement. Such exchange shall be effected by book entry in such manner, and with such supporting documentation, as may be reasonably determined by the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date Agent.
(c) On or since last provided to the Administrative Agent prior to the Effective Date, certified the Lenders (including Existing Lenders and the Fronting Banks, if applicable) shall sell and purchase Initial Loans, and make and receive payments, in immediately available funds, among themselves (and the Fronting Banks, if applicable), as directed by the Lead Arranger, in order to permit the exercise of Section 13.7 of the Credit Agreement. All such sales and purchases shall be deemed to have been made in compliance with Section 13.6 and Section 13.7 of the Credit Agreement and are hereby ratified and confirmed. The purchases and sales described in this Section 4(c) shall be effected by book entry in such manner, and with such supporting documentation, as may be reasonably determined by the Administrative Agent.
(d) To the extent there exists any Reallocated Loans, promptly following the Effective Date (but not later than 30 days following the Effective Date), each New Lender and each Converting Lender purchasing additional Tranche B-1 Loans shall purchase Reallocated Loans from the Fronting Banks as true directed by the Lead Arranger in accordance with such Participating Lender’s Tranche B-1 Participation Notice and correct as allocated by its secretary or assistant secretary;the Lead Arranger. Except to the extent otherwise agreed by the Fronting Banks, purchases and sales of Reallocated Loans shall be made on a ratable basis among the Fronting Banks.
(viiie) To the Administrative Agent extent there exists any Non-Participating Lenders, such Non-Participating Lenders shall have received certificates issued be replaced (and the Initial Loans of such Non-Participating Lenders shall be assumed) by one or more Converting Lenders pursuant to Section 13.7 of the Credit Agreement as of a recent date directed by the Secretaries of State Lead Arranger. To the extent that this Section 4(e) and Section 4.1(c) cannot be effected or otherwise at the election of the respective jurisdictions of formation of the Borrower and Lead Arranger, each Guarantor as Participating Lender (other than a Converting Lender (except to the due existence and good standing of extent such Person;
(ixConverting Lender is purchasing additional Tranche B-1 Loans)) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term severally advance Tranche B-1 Loans in each case requested to be made Dollars on the Effective Date in accordance with its Tranche B-1 Participation Notice (or such lesser amount as the Lead Arranger may allocate and/or as such Participating Lender may specify in its Tranche B-1 Commitment). Such funding of Tranche B-1 Loans shall be deemed, automatically and without further act by any Person, to constitute a simultaneous (A) Borrowing by the Borrower of Tranche B-1 Loans pursuant to Section 2.1(a) of the Credit Agreement and (after giving effect B) prepayment of Initial Loans of Non-Participating Lenders pursuant to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% Section 5.1 of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower , and such Participating Lenders shall have repaid the Term Loans under be Tranche B-1 Lenders, and such advance shall constitute a borrowing of Tranche B-1 Loans, for all purposes of the Credit Agreement to and the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the other Credit Agreement) or proceeds from the Year 2010 Senior Notes; andDocuments.
(xiif) the Administrative Agent shall have received evidence that all fees payable Any prepayment of Initial Loans made by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day but prior to or on the Effective Date (which effectiveness of this Agreement may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon applied, in the Engagement LetterLead Arranger’s discretion, dated March 31first, 2010to prepay Initial Loans of Non-Participating Lenders in such manner as the Lead Arranger shall direct, among the Administrative Agentand second, JPMorgan and the Borrower to prepay Initial Loans of Participating Lenders on a pro rata basis (the “Engagement Letter”or, with respect to any Participating Lender, such lesser amount as such Participating Lender may agree).
Appears in 1 contract
Sources: Credit Agreement
Conditions to Effectiveness. This Amendment shall become effective upon The agreement of Prudential and the date Series B Purchasers to amend and restate the Existing Agreement in its entirety as provided herein is subject to the satisfaction, on which each or before the Effective Date, of the following conditions:
3A(1) Prudential and the Series B Purchasers shall have been received or waived the following documents, each duly executed and delivered by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) party or parties thereto and (xii) of this Section 4), each in form and substance satisfactory to Prudential and the applicable recipientSeries B Purchasers:
(i) Confirmation and Reaffirmation of Second Amended and Restated Parent Guarantee Agreement, dated as of the Administrative Agent shall have received this Amendmentdate hereof, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentParent (the “Confirmation and Reaffirmation of Parent Guaranty”);
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly Subsidiary Guaranty executed and delivered by each Guarantorof the Subsidiary Guarantors;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel Confirmation and Reaffirmation of Second Amended and Restated Subordination Agreement, dated as of the date hereof, executed by the Credit Parties and any of their respective Subsidiaries party to any subordination agreement in connection with the Borrower Bank Credit Agreement, Prudential and the Series B Purchasers (the “Confirmation and Reaffirmation of Subordination Agreement”) and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel Supplement to the Borrower Second Amended and GuarantorsRestated Subordination Agreement, in each case dated as of the Effective Datedate hereof, addressed to the Administrative Agent executed by LCI Industries B.V., LCI Industries C.V., LCI Industries Pte. Ltd., Prudential and the Lenders and reasonably satisfactory to the Administrative AgentSeries B Purchasers;
(iv) the Administrative Agent shall have received resolutions Confirmation and Reaffirmation of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower Second Amended and each Guarantor certified by its secretary or assistant secretary Restated Pledge and Security Agreement, dated as of the Effective Datedate hereof, approving this Amendment, adopting the Loan Documents to be executed by such Personthe Obligors and the Subsidiary Guarantors in favor of the Notes Collateral Agent, as secured party, for the benefit of the holders from time to time of Notes (the “Confirmation and authorizing the execution and delivery thereof;Reaffirmation of Pledge Agreement”); and
(v) the Administrative Agent shall have received specimen signatures of officers or such other appropriate representatives executing the Loan Documents on behalf of the Borrower certificates, documents and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
agreements as Prudential may request (vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice including those referenced in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”paragraph 3B).
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Lci Industries)
Conditions to Effectiveness. This Amendment shall become effective upon the execution and delivery of counterparts hereof by the parties and the fulfillment of the following conditions (provided, however, that the effectiveness of the consent given in Section 5 hereof shall be further conditioned on the express conditions set forth in Section 5):
(a) Purchaser shall have received certified copies of resolutions of the board of directors for each Company Party, approving and authorizing the execution, delivery, and performance of this Amendment, the Allonge and the Restated LLCP Warrant, certified as of the date on which hereof by its corporate secretary or an assistant secretary as being in full force and effect without modification or amendment.
(b) Purchaser shall have received each of the following shall have been received or waived documents, duly executed by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientperson which is a party thereto:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentThe Restated LLCP Warrant;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each GuarantorThe Allonge;
(iii) One (1) copy of each of the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative AgentBank Warrants;
(iv) the Administrative Agent shall have received resolutions One (1) copy of each of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower Credit Agreements, including but not limited to that certain Amendment Agreement No. 3 and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, Waiver and authorizing the execution that certain Amendment Agreement No. 6 and delivery thereofWaiver;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf One (1) copy of the Borrower consent of the Holders of the 7% Convertible Subordinated Notes, and each Guarantor, certified by the secretary or assistant secretary of such Borrower or GuarantorAmendment to the 7% Convertible Subordinated Promissory Notes;
(vi) A certificate of an officer of Parent, stating that (x) no consideration has been paid or accrued by the Administrative Agent shall have received any changes to Senior Lenders or the Organizational Documents holders of the Borrower 7% Convertible Subordinated Notes in respect of the transactions consented to hereby other than that previously disclosed to Purchaser in writing, and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date(y) all other terms and provisions of that certain Letter Agreement by and between Purchaser and Parent, certified dated as true and correct by its secretary or assistant secretary;of April 9, 2001 have been fully complied with; and
(vii) the Administrative Agent shall have received any changes to the Operating Documents All expenses of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date Purchaser reimbursable in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% Section 8.6 of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Securities Purchase Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders incurred in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; andAmendment have been reimbursed in full.
(xiic) Parent hereby agrees and acknowledges that the Administrative Agent shall have received evidence that amendment fee and all fees payable by the Borrower on or before the Effective Date other consideration to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) be given to Purchaser in connection with this AmendmentAmendment or the consents granted herein, have been paid expressly including, but not limited to, the amendment fee in fullthe amount of Two Million Two Hundred Fifty Thousand Dollars ($2,250,000), including as reflected in the fees and expenses of counsel Allonge to the Administrative Agent to Senior Subordinated Note, or the extent invoiced at least one (1) Business Day prior to or on amendment and restatement of the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts LLCP Warrant, as to such fees and expenses) in each case to the extent agreed upon reflected in the Engagement LetterAmended and Restated Warrant, dated March 31of even date herewith, 2010, among the Administrative Agent, JPMorgan are fully earned and the Borrower (the “Engagement Letter”)non-refundable upon execution and delivery of this Amendment.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall will become effective upon as of the date on which each of hereof (the following shall have been received or waived “Amendment Effective Date”) upon receipt by the Administrative Agent (or, in its discretion the case of clause (except that g) below, the applicable Lender) of the following:
(a) the fully executed counterparts of this Amendment (including the Ratification of Guaranty hereto by the Guarantors) executed by the Loan Parties, the Administrative Agent may and the requisite Lenders;
(b) with respect to any Assignee which is not waive receipt a Lender immediately prior to the Amendment Effective Date, a Note executed by the Borrowers in favor of clauses such Assignee to the extent such Assignee is requesting a Note;
(i)c) an updated Perfection Certificate, duly executed and delivered by each Loan Party;
(ii), d) the Administrative Agent is satisfied that all actions have been taken with respect to flood determinations as is required to comply with applicable law;
(iii), (iv), (x), (xie) and (xii) of this Section 4), a certificate from each Loan Party in form and substance satisfactory to the applicable recipient:
Administrative Agent and dated as of the Amendment Effective Date as to the incumbency of, and 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, and certifying and attaching copies of (i) each Loan Party’s Organization Documents (or a certification that no changes have been made to such Loan Party’s Organization Documents from those delivered to the Administrative Agent shall have received this on May 2, 2023 and attached to the certificate delivered pursuant to Section 5(f) of the Ninth Amendment to Third Amended and Restated Credit Agreement dated as of May 2, 2023 (the “Ninth Amendment”) among certain of the Loan Parties, executed the Lenders and the Administrative Agent (the “Nine Amendment Certificate”) or, with respect to (w) Meridian and Global E▇▇▇▇▇▇, on November 10, 2023 in the certificate delivered by a duly authorized officer of pursuant to the Joinder Agreement dated November 10, 2023; (ax) Terminal Holdings, on December 12, 2023 in the Borrower certificate delivered pursuant to the Joinder Agreement dated December 12, 2023; (y) Chelsea Terminals, Linden Terminals, New Haven Terminals and Woodbury Terminals, on May 8, 2024 in the certificate delivered pursuant to the Joinder Agreement dated May 8, 2024; and (bz) East Providence Terminals, on November 22, 2024 in the Required Lenders (includingcertificate delivered pursuant to the Joinder Agreement dated November 22, in any event, each Lender providing a portion of the Extended Facilities2024), together with all schedules ; and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)resolutions of each Loan Party’s board of directors, substantially in members or managers, as the form of Exhibit B heretocase may be, duly executed and delivered authorizing the transactions contemplated by each Guarantorthis Amendment;
(iiif) a good standing and legal existence certificate for each Loan Party, issued by the state in which such Loan Party is organized;
(g) on or prior to the Amendment Effective Date, any Loan Party that qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Benefit Ownership Regulation”) shall have delivered to each Lender that so requests, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation in relation to such Loan Party;
(h) a favorable opinion of (i) S▇▇▇ ▇. ▇▇▇▇▇, Esq. and V▇▇▇▇▇ & E▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent shall have received and each Lender, as to matters concerning the favorable written opinion or opinions with respect to Loan Parties and the Amendment and related Loan Documents executed on as the Effective Date and the transactions contemplated thereby of Required Lenders may reasonably request, (Aii) in-house legal counsel to the Borrower and (B) SkaddenS▇▇▇▇▇▇, Arps, Slate, W▇▇▇▇▇▇▇▇▇ & W▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective DateC▇▇▇▇▇▇, addressed to the Administrative Agent and each Lender, as to matters concerning Cascade as the Required Lenders and may reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Personrequest, and authorizing the execution and delivery thereof;
(viii) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each GuarantorB▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes counsel to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided Global Canada, addressed to the Administrative Agent prior and each Lender, as to the Effective Date, certified matters concerning Global Canada as true and correct by its secretary or assistant secretarythe Required Lenders may reasonably request;
(viii) the Administrative Agent shall have received any changes to the Operating Documents copies of the Borrower and each Guarantor since Loan Parties’ 2024 Audited Financial Statements together with financial projections through the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Maturity Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiij) the Administrative Agent shall have received evidence that all any fees payable required to be paid by the Borrower Loan Parties on or before the Amendment Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, shall have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)paid.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective upon The effectiveness of this Agreement is subject to the date on which each satisfaction or waiver of the following shall have been received or waived by the conditions precedent:
(a) The Administrative Agent in its discretion (except that the Administrative Agent may not waive Agent’s receipt of clauses the following, each of which shall be originals or facsimiles (i)followed promptly by originals) or electronic copies (following promptly by originals) unless otherwise specified, (ii)each properly executed by a Responsible Officer of the signing Loan Party, (iii), (iv), (x), (xi) and (xii) of this Section 4)if any, each in form and substance reasonably satisfactory to the applicable recipientAdministrative Agent:
(i) counterparts of this Agreement, duly executed by Holdings, the Administrative Agent shall have received this AmendmentBorrower, executed the Guarantors and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document, duly executed by each Loan Party party thereto, including without limitation the Secured Party Security Agreement Supplement;
(iv) such resolutions or other action, in each case in form and substance satisfactory to the Administrative Agent, together with incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date and with appropriate insertions and attachments, including the certificate of incorporation (or equivalent thereof) of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party and a long form good standing certificate (or equivalent thereof) for each Loan Party from its jurisdiction of organization;
(v) opinion from (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, special New York counsel to Holdings substantially in the form of Exhibit F and (ii) local counsel in Washington as may be reasonably requested by the Administrative Agent;
(vi) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to such liability and property insurance as to which the Administrative Agent shall have reasonably requested to be so named; and
(vii) [Reserved]; and
(viii) a certificate signed by a Responsible Officer of the Borrower certifying compliance with the conditions set forth in paragraphs (n) and (o) of this Section 4.01.
(b) The Administrative Agent shall have received counterparts of the Fee Letter, duly executed by the Borrower and Holdings.
(c) The Lenders and the Administrative Agent shall have received an acknowledgment payment in full in cash of all costs, fees and consent expenses due and payable (“Acknowledgment including those required to be paid to such Lenders hereunder) and Consent”), substantially in invoiced before the form of Exhibit B hereto, duly executed and delivered by each Guarantor;Closing Date.
(iiid) [Reserved].
(e) [Reserved].
(f) The Lenders shall have received (i) the Audited Financial Statements and Unaudited Financial Statements and (ii) projections through December 31, 2014, in form reasonably satisfactory to the Administrative Agent, accompanied by a certificate of a Responsible Officer of the Borrower stating that such projections are based on estimates, information and assumptions believed by management of the Borrower to be reasonable on the Closing Date and that to his or her best knowledge, such Responsible Officer (not in his or her individual capacity, but solely as a Responsible Officer) has no reason to believe that such projections are incorrect or misleading in any material respect (it being understood and agreed that the projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Responsible Officer and that no assurance can be given that any of the projections will be realized, and that such projections are not a guarantee of financial performance and actual results may differ from the projected results and such differences may be material).
(g) The Administrative Agent shall have received satisfactory evidence that the Collateral Agent, as bailee for the Secured Parties, shall have received certificates, if any, representing the Pledged Equity referred to therein, to the extent required therein, accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank; and
(h) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment satisfactory evidence that all other actions, recordings and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and the Lenders and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;.
(ivi) the The Administrative Agent shall have received resolutions of at least three days prior to the boards of directors or Closing Date all documentation and other appropriate governing body information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, requested by such Person.
(or of the appropriate committee thereofj) [Reserved].
(k) All obligations described in clause (a) of the Borrower definition of “Obligations” shall constitute (i) “Priority Payment Lien Obligations” under and each Guarantor certified by its secretary or assistant secretary as defined in the Senior Secured Note Indenture and (ii) Bank Priority Obligations at the time of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (immediately after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)proposed Loan.
Appears in 1 contract
Sources: Term Loan Credit and Guarantee Agreement (RDA Holding Co.)
Conditions to Effectiveness. This Fifth Amendment shall become effective upon on and as of the first date (the “Fifth Amendment Effective Date”) on which each of the following shall have been received or waived by the Administrative Agent determines in its sole and absolute discretion that the following conditions precedent have been satisfied:
(except that a) the Administrative Agent may not waive receipt of clauses (i)shall have received on or before the Fifth Amendment Effective Date, (ii), (iii), (iv), (x), (xi) and (xii) duly executed copies of this Section 4Fifth Amendment by each party hereto (which may include a copy transmitted by PDF or other electronic method);
(b) the Administrative Agent shall have received on or before the Fifth Amendment Effective Date, each duly executed copies of the Intercreditor Agreement, in a form and substance satisfactory to the applicable recipient:Administrative Agent, by each party thereto (which may include a copy transmitted by PDF or other electronic method);
(c) the Administrative Agent shall have received on or before the Fifth Amendment Effective Date, duly executed copies of each of the Note Purchase Documents, in a form and substance satisfactory to the Administrative Agent, by each party thereto (which may include a copy transmitted by PDF or other electronic method);
(d) the Administrative Agent shall have received on or before the Fifth Amendment Effective Date, duly executed copies of an amendment to the ABL Credit Agreement, in a form and substance satisfactory to the Administrative Agent, by each party thereto (which may include a copy transmitted by PDF or other electronic method);
(e) payment by Borrower of a structuring fee to CSG Investment, Inc., in cash in the amount of three million dollars ($3,000,000) (the “Structuring Fee”);
(f) each of the respective conditions set forth in Section 2.3 of the Third Lien Notes Agreement to the obligations of each party thereto to consummate the transactions contemplated thereby on or prior to the Fifth Amendment Effective Date;
(g) immediately prior to and after giving effect to this Fifth Amendment, all representations and warranties of each Loan Party contained in Article IV of the Credit Agreement are true and correct in all material respects on and as of the date of this Fifth Amendment and the Fifth Amendment Effective Date as if made on and as of such date (or if stated to have been made at an earlier date, were true and correct in all material respects as of such earlier date) (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects);
(h) after giving effect to this Fifth Amendment, no Default or Event of Default has occurred and is continuing;
(i) the Administrative Agent and the Lenders shall have received been paid or reimbursed by the Borrower for all costs and expenses associated with the preparation, negotiation and execution of this AmendmentFifth Amendment and the other instruments and documents to be delivered hereunder and in connection with the transactions contemplated hereby (including, executed the reasonable, documented and delivered by a duly authorized officer out-of-pocket accrued and unpaid fees and expenses of counsel thereto to the extent invoiced at least one Business Day prior to the Fifth Amendment Effective Date);
(aj) the Borrower shall have made in full (and the Administrative Agent shall have received) all payments (b) including all Scheduled Amortization Payments (as defined in the Required Lenders (including, in any event, each Lender providing a portion of the Extended FacilitiesOriginal Credit Agreement), together with all schedules interest, fees, costs and exhibits hereto and acknowledged by expenses) due under the Administrative Agent;Loan Documents prior to the Fifth Amendment Effective Date (without giving effect to any amendments to the Original Credit Agreement made as of such Fifth Amendment Effective Date); and
(iik) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in opinion of counsel for the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and GuarantorsParties, in each case dated the Effective Date, addressed to the Administrative Agent form and the Lenders and substance reasonably satisfactory to the Administrative Agent;
Agent (iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Dateincluding, approving this Amendmentwithout limitation, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes with respect to the Organizational Documents enforceability of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Fifth Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (U.S. Well Services, Inc.)
Conditions to Effectiveness. This First Amendment shall become effective only upon the date on which each satisfaction or waiver of all of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientconditions precedent:
(iA) the The parties hereto shall have duly executed and delivered this First Amendment.
(B) The Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion certificate of the Extended Facilities)Secretary or Assistant Secretary of the Fund dated as of the First Amendment Effective Date, together with all schedules certifying (i) that attached thereto are true and exhibits hereto complete copies of the resolutions of the board of trustees of the Fund authorizing the execution, delivery and acknowledged performance by the Administrative Agent;
Fund of this First Amendment and borrowing under the Agreement as amended hereby, (ii) that said resolutions are all of the resolutions adopted by the board of trustees of the Fund in connection with the transactions contemplated hereby and are in full force and effect without modification as of such date, (iii) that the Fund's By- laws either are attached to such certificate, or to the extent not attached have not been amended since the Closing Date, (iv) that its charter or certificate, as the case may be, either is attached to such certificate or to the extent not attached has not been amended since the Closing Date, and (v) as to the incumbency and signatures of each of its officers executing this First Amendment and any other documents to which it is a party.
(C) The Administrative Agent shall have received an acknowledgment from the Borrowers the fees and consent expense reimbursements referred to under Section 6 hereof.
(“Acknowledgment and Consent”), substantially D) The Administrative Agent shall have received (i) a duly executed Designation of New Borrowers in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
9.16(a) of the Agreement (iiiwith a copy of the Agreement attached thereto) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby addition of (▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ International Core Growth A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇-▇▇▇▇▇▇▇▇▇ LLPInternational Core Growth B, special counsel ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ International Core Growth C, ▇▇▇▇▇▇▇▇- ▇▇▇▇▇▇▇▇▇ International Core Growth Qualified Portfolio, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ International Core Growth Institutional Portfolio and ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Large Cap Institutional Portfolio as Borrowers (collectively, the "NEW BORROWERS"); (ii) with a copy for each Lender, true and correct copies, certified as to authenticity by the Fund, of each New Borrower's most recent: prospectus; Administration Agreement; Custody Agreement; Distribution Agreement; registration statement; annual and semi-annual financial reports; debt instruments, security agreements and other material contracts to which it is a party; and publicly available financial information (which includes a list of portfolio securities); (iii) the Investment Advisory Agreement of NAIT with respect to the series of NAIT in which the assets of each New Borrower are invested; and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be an executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses legal opinion of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees Fund and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon New Borrower substantially in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).form of Exhibit 4.1
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become be deemed to be effective upon the date on which satisfaction or waiver of each of the following shall have been received or waived by conditions to the reasonable satisfaction of the Administrative Agent in its discretion Agent:
(except that the a) The Administrative Agent may not waive Agent’s receipt of clauses (i)the following, (ii), (iii), (iv), (x), (xi) and (xii) each properly executed by a Responsible Officer of this Section 4)the signing Person, each in form and substance reasonably satisfactory to the applicable recipientAdministrative Agent:
(i) the Administrative Agent shall have received this Amendment, duly executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities)Borrower, together with all schedules and exhibits hereto and acknowledged by the Administrative Agent, the New Lender and each of the Existing Lenders;
(ii) the Administrative Agent shall have received Notes in an acknowledgment and consent aggregate amount of up to One Billion Three Hundred Million Dollars (“Acknowledgment and Consent”$1,300,000,000), substantially executed by the Borrower in favor of each Lender requesting a Note (in the form amount of Exhibit B such Lender’s Applicable Percentage, as set forth on Schedule 2.01 attached hereto) and dated as of the Second Amendment Effective Date which Notes shall amend and restate in their entirety, to the extent applicable, those certain Notes issued by Borrower in favor of the Lenders and dated as of the First Amendment Effective Date;
(iii) an Affirmation of Guaranty duly executed and delivered by each Guarantor;
(iiiiv) a New Lender Addendum in substantially the form attached as Exhibit F to the Credit Agreement duly executed by HSBC Australia;
(v) a favorable opinion of counsel to the Loan Parties reasonably acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning the Loan Parties and the Loan Documents (including, but not limited to this Amendment) in form and substance reasonably satisfactory to Agent; and
(vi) a certificate of a Responsible Officer of the Borrower certifying that (A) the Administrative Agent shall articles or certificate of incorporation or formation (or equivalent), as applicable, of the Borrower have received not been amended since the favorable written opinion date of the last delivered certificate, or opinions with respect to if they have been amended, attached thereto are true, correct and complete copies of the Amendment same, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, (B) the bylaws or other governing document of the Borrower have not been amended since the date of the last delivered certificate, or if they have been amended, attached thereto are true, correct and related Loan Documents executed on complete copies of the Effective Date same, (C) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or other governing body) of the Borrower authorizing and approving the transactions contemplated thereby hereunder and the execution, delivery and performance of this Amendment and the Credit Agreement as amended by this Amendment and (D) attached thereto is a true, correct and complete copy of a certificate of good standing from the applicable secretary of state of the state of incorporation, organization or formation (or equivalent), as applicable, of the Borrower.
(b) Payment of (Ai) in-house legal counsel to the Borrower all fees and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to expenses of the Administrative Agent and the Lenders and in the case of expenses, to the extent invoiced at least two (2) Business Days prior to the Second Amendment Effective Date (except as otherwise reasonably agreed to by the Borrower), required to be paid on the Second Amendment Effective Date and (ii) all fees to the Lenders required to be paid on the Second Amendment Effective Date.
(c) The representations and warranties in Section 6 of this Amendment shall be true and correct as of the Second Amendment Effective Date. For purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent;
(iv) a Lender unless the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by notice from such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes Lender prior to the Organizational Documents of the Borrower and each Guarantor since the First proposed Second Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by specifying its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Resmed Inc)
Conditions to Effectiveness. This (a) The provisions of Sections 2 and 4 of this Amendment shall become effective upon on the date (the "Phase I Effective Date") on which each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received (i) an amendment fee in the amount of $125,000 for the Ratable account of the Lenders, which fee is earned on such date and is not subject to refund or rebate of any kind whatsoever, and (ii) the following documents, each of which shall be satisfactory in form and substance to the Administrative Agent and in sufficient copies for each Lender:
(A) this Amendment, Amendment duly executed and delivered by a duly authorized officer of (a) the Borrower Borrowers, the Lenders and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(iiB) a certificate of the secretary or assistant secretary of each Borrower having attached thereto the articles or certificate of incorporation and bylaws of such Borrower (or containing the certification of such secretary or assistant secretary that no amendment or modification of such articles or certificate of incorporation or bylaws has become effective since the last date on which such documents were last delivered to the Lenders), all corporate action, including shareholders' approval, if necessary, has been taken by such Borrower and/or its shareholders to authorize the execution, delivery and performance of this Amendment and to the further effect that the incumbency certificate most recently delivered to the Lenders remains in effect, unchanged;
(C) a certificate of the president or chief financial officer of MasTec stating that, to the best of his or her knowledge and based on an examination sufficient to enable him or her to make an informed statement, both before and after giving effect to the Amendment,
(1) all of the representations and warranties made or deemed to be made under the Loan Agreement are true and correct on and as of the Phase I Effective Date, and
(2) no Default or Event of Default exists; and the Administrative Agent shall have received an acknowledgment be satisfied as to the truth and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;accuracy thereof; and
(iiiD) such other documents and instruments as any Lender through the Administrative Agent may reasonably request.
(b) The provisions of Section 3 of this Amendment shall become effective on the date (the "Phase II Effective Date") on which the Administrative Agent shall have received the favorable written opinion or opinions with respect following documents, each of which, unless otherwise indicated below, shall be satisfactory in form and substance to the Amendment Administrative Agent and related Loan Documents executed in sufficient copies for each Lender:
(i) on or prior to December 16, 2002, the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPIntercreditor Agreement, special counsel to duly executed and delivered by the Borrower Administrative Agent and Guarantorsthe ▇▇▇▇ & ▇▇▇▇▇▇▇ Sureties and acknowledged by the Borrowers, in each case dated the Effective Date, addressed form and substance satisfactory to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
in their sole discretion (iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary capitalized terms are used herein as of the Effective Date, approving this Amendment, adopting defined in the Loan Documents to be executed by such PersonAgreement, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiiii) a certificate of the president or chief financial officer of MasTec stating that, to the best of his or her knowledge and based on an examination sufficient to enable him or her to make an informed statement, both before and after giving effect to the Amendment,
(A) all of the representations and warranties made or deemed to be made under the Loan Agreement are true and correct on and as of the Phase II Effective Date, and
(B) no Default or Event of Default exists; and the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date be satisfied as to the Administrative Agent, JPMorgan truth and the Lenders accuracy thereof; and
(or their affiliatesiii) in connection with this Amendment, have been paid in full, including the fees such other documents and expenses of counsel to instruments as any Lender through the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)reasonably request.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Mastec Inc)
Conditions to Effectiveness. This Amendment shall become effective upon Upon the date on which satisfaction or waiver of each of the following conditions, this Agreement shall be deemed to be effective (the date of such satisfaction, the “Effective Date”):
(a) the Administrative Agent shall have been received or waived counterparts of this Agreement executed by the Administrative Agent in its discretion Agent, each Initial Incremental Lender, the Borrower and each Subsidiary Guarantor;
(except that b) the Administrative Agent may not waive receipt shall have received a duly executed Initial Term Loan Note in favor of clauses each Initial Incremental Lender (in each case, if requested by such Initial Incremental Lender prior to the Effective Date);
(c) no Default shall exist as of the Effective Date immediately prior to or after giving effect to (i)) the Initial Incremental Increase, (ii), ) the making of any extension credit pursuant to this Agreement and (iii), ) the SJL Acquisition;
(iv), (x), (xid) and (xii) of this Section 4), each the Borrower shall deliver or cause to be delivered a certificate in form and substance satisfactory to the Administrative Agent and executed by an Authorized Signatory certifying (i) the pro forma Leverage Ratio after giving effect to the SJL Acquisition and the making of the extensions of credit pursuant to the Initial Incremental Increase (assuming that the Initial Incremental Increase is fully funded on the Effective Date), which shall be less than or equal to the then applicable recipient:Debt Incurrence Test, (ii) that the pro forma Leverage Ratio after giving effect to the SJL Acquisition is less than or equal to the greater of (A) the Leverage Ratio as of the last day of the most recently ended fiscal quarter for which financial statements have been (or were required to be) delivered under Section 6.1 or 6.2 of the Credit Agreement, as applicable, and (B) 6.75 to 1.00, (iii) after giving effect to the SJL Acquisition, the Borrower shall have Liquidity of at least $20,000,000, (iv) that attached thereto are a true, correct and correct copies of (A) the resolutions of the Borrower and each Subsidiary Guarantor authorizing the execution, delivery and performance of this Agreement, the transactions contemplated hereby and the Loan Documents (as amended hereby), (B) any amendments to articles or certificates of formation or incorporation (or the equivalent) and the bylaws or operating agreements (or the equivalent) of the Borrower and each Subsidiary Guarantor since the Closing Date and (C) the Acquisition Documents with respect to the SJL Acquisition and (v) that each of the requirements set forth in the definition of “Permitted Acquisition” applicable to the SJL Acquisition which are required prior to such Acquisition shall have been satisfied;
(ie) the SJL Acquisition (including, without limitation, all asset purchases, Station Servicing Arrangements and/or option agreements, put/call agreements and agreements evidencing rights to assign any assets, in each case related to such Acquisition) shall be consummated substantially concurrently with the extensions of credit hereunder in accordance with all Applicable Laws and on the terms and conditions set forth in Acquisition Documents with respect thereto without giving effect to any amendment, modification, waiver or consent thereto that is materially adverse to the Lenders (as reasonably determined by the Administrative Agent), unless approved in writing by the Administrative Agent;
(f) the Administrative Agent shall have received this Amendmentthe following, executed in form and delivered by a duly authorized officer substance reasonably satisfactory to the Administrative Agent:
(i) legal opinions of (aA) J▇▇▇▇ Day, corporate counsel to the Borrower and its Restricted Subsidiaries, and (bB) such other legal opinions as may be reasonably requested by the Required Lenders Administrative Agent (includingwhich shall include customary reliance by successors and/or assigns of each Initial Incremental Lender and the Administrative Agent) in each case, in any event, addressed to each Initial Incremental Lender providing a portion and the Administrative Agent and dated as of the Extended Facilities)Effective Date, together with all schedules which shall be in form and exhibits hereto and acknowledged by substance reasonably acceptable to the Administrative Agent;
(ii) Uniform Commercial Code Lien and other applicable searches with respect to the Target and each of its Subsidiaries, the applicable television stations, applicable purchased assets (including any rights of assignment) and the applicable Seller with respect to the SJL Acquisition and any payoff letters or lien releases required in connection with the SJL Acquisition;
(iii) evidence that (i) the SJL Acquisition has been approved by the board of directors (or equivalent governing body) of the Seller and (ii) all Necessary Authorizations relating to the execution, delivery and performance of this Agreement and any other documents in connection therewith and the consummation of the SJL Acquisition (including, without limitation, all asset purchases, Station Servicing Arrangements and/or option agreements, put/call agreements and agreements evidencing rights to assign any assets, in each case related to the SJL Acquisition) have been obtained or made and are in full force and effect;
(iv) a completed and duly executed Request for Advance substantially in the form of Exhibit D to the Credit Agreement; and
(v) all such other documents as the Administrative Agent may reasonably request, in each case certified by an appropriate governmental official or an Authorized Signatory if so requested; and
(g) The Borrower shall have paid to the Administrative Agent, W▇▇▇▇ Fargo Securities, LLC and the Initial Incremental Lenders all fees due on the Effective Date and any other accrued and unpaid fees or commissions due on the Effective Date, (ii) all reasonable and invoiced fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent accrued and unpaid prior to or on the Effective Date, plus such estimate of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent) and (iii) to any other Person such amount as may be due thereto on the Effective Date in connection with the transactions contemplated hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any document in connection with this Agreement. Without limiting the generality of the provisions of Section 9.3 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Initial Incremental Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to an Initial Incremental Lender unless the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by notice from such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent Lender prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment proposed Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by specifying its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)objection thereto.
Appears in 1 contract
Sources: Incremental Facility Agreement (Gray Television Inc)
Conditions to Effectiveness. This Amendment shall become effective upon Subject to the date on which each satisfaction of all of the following conditions precedent (the date of satisfaction of all such conditions being referred to as the "Closing Date"), the amendment set forth in Section 1(a) of this Amendment, the agreement set forth in Section 1(b) of this Amendment (other than with respect to Section 1(b)(ii), which shall have been received or waived be deemed effective as of the date hereof) and the waivers and acknowledgement granted by QUALCOMM under Section 1(c) of this Amendment shall be effective as of the Closing Date, and upon request from Borrower the Administrative Agent shall provide confirmation that all conditions precedent have been satisfied or otherwise waived by QUALCOMM in its discretion sole discretion:
(except that a) Each member of the Administrative Agent may not waive receipt Borrower Group, as applicable, shall deliver or shall cause to be delivered to QUALCOMM, by facsimile, copies of clauses (i), with sufficient originally executed copies for each Lender to be delivered by overnight courier service) the following described documents (ii), (iii), (iv), (x), (xi) and (xii) each of this Section 4), each which shall be reasonably satisfactory in form and substance satisfactory to the applicable recipient:QUALCOMM and its counsel):
(i) the Administrative Agent shall have received this Amendment, duly executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agentparties;
(ii) a confirmation of the Administrative Agent shall have received an acknowledgment Pegaso Guaranty Agreement (in Spanish and consent (“Acknowledgment and Consent”English), substantially in dated as of the form of Exhibit B heretodate hereof, duly executed and delivered by each Guarantorof Pegaso, Pegaso PCS and Pegaso RH, as guarantors under the Pegaso Guaranty Agreement, in favor of Administrative Agent for the benefit of the Lenders;
(iii) a confirmation of the Finanzas and ▇▇▇▇▇ Guaranty as defined below (in Spanish and English), dated as of the date hereof, duly executed and delivered by each of Finanzas and ▇▇▇▇▇, as guarantors, under the Guaranty, dated as of October 10, 2001, by Finanzas and ▇▇▇▇▇ (the "Finanzas and ▇▇▇▇▇ Guaranty") in favor of Administrative Agent shall have received for the favorable written opinion or opinions benefit of the Lenders;
(iv) an executed letter in the form of Exhibit A (the "Notice Letter"), among the Agents (as defined in the Common Agreement) and the Borrower Group with respect to the Amendment waivers and related Loan Documents executed on amendments contemplated in the Effective Date Common Agreement;
(v) a legal opinion from Borrower's Mexican corporate counsel in form and substance satisfactory to QUALCOMM, and
(vi) the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & , dated as of the date hereof, that (A) evidences the outstanding Obligations owed by Borrower to QUALCOMM as of the date hereof, and (B) replaces that certain ▇▇▇▇▇▇ LLPdated as of October 10, special counsel 2001 evidencing the outstanding Obligations owed by Borrower to QUALCOMM as of such date.
(b) Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Borrower and Guarantors, in each case dated the Effective Closing Date, addressed including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by Borrower under or in connection with this Amendment;
(c) On or before the Closing Date, all corporate, partnership and other proceedings taken by each member of the Borrower Group or to be taken in connection with the transactions contemplated by this Amendment, and all documents incidental to such transactions, shall be reasonably satisfactory in form and substance to the Administrative Agent and the Lenders its counsel, and reasonably satisfactory to the Administrative AgentAgent and such counsel shall have received all such counterpart originals or certified copies of such documents, opinions, certificates and evidence as they may reasonably request;
(ivd) the Administrative Agent The representations and warranties set forth in Section 3 of this Amendment shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower be true and each Guarantor certified by its secretary or assistant secretary correct as of the Effective Closing Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiie) All approvals, authorizations, filings or Permits necessary for the Administrative Agent execution, delivery and performance of this Amendment shall have received evidence that all fees payable been made, taken or obtained from or with any Governmental Authority, and no order, statutory rule, regulation, executive order, decree, judgment or injunction shall have been enacted, entered, issued, promulgated or enforced by any Governmental Authority which prohibits or restricts the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with transactions contemplated by this Amendment, nor shall any action have been paid in fullcommenced or threatened seeking any injunction or any restraining or other order to prohibit, including restrain, invalidate or set aside the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)transactions contemplated by this Amendment.
Appears in 1 contract
Conditions to Effectiveness. 4.1 This Fourth Amendment shall become effective upon the date on which each satisfaction of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each conditions precedent in form and substance satisfactory to the applicable recipient:Administration Agent (the date and fulfillment of such conditions being herein referred to as the “Amendment Effective Date”):
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) delivery to the Borrower Administration Agent of a fully executed copy of this Fourth Amendment, dated the Amendment Effective Date, as executed by the Borrowers, the Guarantors, the Agents and the Lenders (with an original wet-ink counterpart signature page to be provided by Colliers International Germany Holding GmbH (the “German Guarantor”) promptly following closing);
(b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect delivery to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby Administration Agent of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in a customary officer’s or director’s certificate of each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified which is incorporated or otherwise formed in the jurisdiction of organization or formation of a Borrower, signed by its secretary an authorized officer or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary director of such Borrower or Guarantor, certifying and attaching (i) copies of its constitutive documents or confirming that they remain in full force and effect and have not been revoked, suspended, amended or modified since they were previously provided to the Administration Agent, (ii) resolutions authorizing the execution, delivery and performance of this Fourth Amendment, and (iii) incumbencies setting forth the signatures and titles of its authorized signatories certifying their authority to sign this Fourth Amendment and any documents contemplated hereby or provided in connection herewith;
(vic) delivery to the Administration Agent of a certificate of the Canadian Borrower, signed by an authorized officer of the Canadian Borrower, for and on behalf of the Guarantors (to the extent not already provided by the Guarantors pursuant to paragraph 4.1(b) above), confirming certain customary matters of fact;
(d) delivery to the Administration Agent of certificates of good standing (to the extent such concept exists) in respect of each Borrower from the applicable Governmental Authority;
(e) delivery to the Administration Agent of customary legal opinions in respect of each Borrower;
(f) the Administrative Administration Agent shall have received any changes payment from the Borrowers of the fees as set forth in that certain fee letter dated November 12, 2024 between the Canadian Borrower and the Canadian Agent;
(g) the Borrowers shall have provided the documentation and other information reasonably requested in writing by the Administration Agent and the Lenders as they reasonably determine is required by regulatory authorities under applicable "know your customer", beneficial ownership and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), in each case at least three (3) Business Days prior to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date (or since last provided to such shorter period as the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Administration Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendmentotherwise agree);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiih) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date delivery to the Administrative Agent, JPMorgan Administration Agent such other documents and information which the Administration Agent or the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)reasonably request.
Appears in 1 contract
Sources: Sustainability Linked Credit Agreement (Colliers International Group Inc.)
Conditions to Effectiveness. This Second Amendment shall not become effective until, and shall become effective upon on the date on which (the “Effective Date”) when, each and every one of the following conditions shall have been satisfied:
(a) Each of the following shall have been received or waived delivered to each Noteholder, each duly executed and delivered by the Administrative Agent party or parties thereto, in its discretion (except form and substance satisfactory to the Noteholders and dated the Effective Date unless otherwise indicated, and on the Effective Date in full force and effect with no event having occurred and being then continuing that would constitute a default thereunder or constitute or provide the Administrative Agent may not waive receipt of clauses basis for the termination thereof:
(i) executed counterparts of this Second Amendment, duly executed by the Company and the holders, shall have been delivered to the Noteholders;
(ii) the amended and restated Notes, in the form of Exhibit 1 attached hereto;
(iii) the Intercreditor Agreement, duly executed by the Collateral Agent, the Bank Agent, the Noteholders and the holders of the notes outstanding under the 2006 Note Purchase Agreement;
(iv) the Subsidiary Guaranty, in the form attached hereto as Exhibit 2.2(a), duly executed by each Subsidiary Guarantor;
(ii)v) the Security Agreement, duly executed by the Company, each Subsidiary Guarantor and the Collateral Agent;
(iii), b) each Noteholder shall have received payment of the amendment fee due such holder as provided in Section 5.1 and counsel to the Noteholders shall have received payment of the fees and expenses due such counsel as provided in Section 5.2 hereof;
(iv), (x), (xic) the Noteholders shall have received evidence satisfactory to them that a waiver and (xii) of this Section 4)amendment to the Credit Agreement and the 2006 Note Purchase Agreement, each in form and substance satisfactory to the applicable recipient:Noteholders, shall have been duly executed and delivered by the Company and the required other parties and shall be in full force and effect;
(d) the Company shall have delivered a certificate of an Senior Financial Officer (i) attaching a copy of the January 2009 Financial Forecasts, and (ii) certifying that the January 2009 Financial Forecasts have been prepared by the Company on the basis of assumptions which the Company reasonably believes were reasonable when made in light of the historical performance of the Company and its Subsidiaries and reasonably foreseeable business conditions, and that no facts are known to the Company at the date thereof which, if reflected in the January 2009 Financial Forecasts, would result in a material adverse change in the assets, liabilities, results of operations or cash flows reflected therein;
(e) the representations and warranties of the Company set forth in Section 3 hereof shall be true and correct on the date of the effectiveness of this Second Amendment;
(f) the Noteholders shall have received lien searches in respect of the Company and its Subsidiaries in form and substance satisfactory to the Noteholders;
(g) the Noteholders shall have received copies of all chattel paper, instruments and documents of title in which the Collateral Agent has been granted a security interest and are then required under the Collateral Documents to be delivered to the Collateral Agent, together with the related transfer documents executed in blank, in each case received by the Collateral Agent, all Uniform Commercial Code financing statements perfecting the security interests and liens granted to the Collateral Agent, duly filed in all offices necessary to perfect such security interests and liens or deemed by such Purchaser to be advisable, and all such other certificates, documents, agreements, recording and filings necessary to establish a valid and perfected first priority lien and security interest (subject only to Liens described in Section 10.4 of the Note Purchase Agreement) in favor of the Collateral Agent in all of the Collateral or deemed by the Required Holders or the Collateral Agent to be advisable;
(h) the Company shall have delivered from insurance carriers acceptable to the Noteholders certificates of insurance in such forms and amounts acceptable to the Noteholders evidencing insurance required to be maintained under Section 9.2 of the Note Purchase Agreement or under any of the Collateral Documents under insurance policies with additional insured and loss payable clauses in favor of the Collateral Agent and acceptable to the Noteholders;
(i) the Administrative Agent Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company and each Subsidiary Guarantor authorizing the execution, delivery and performance by the Company or such Subsidiary Guarantor of this Second Amendment, executed the amended and delivered restated Notes, the Collateral Documents and the Subsidiary Guaranty, as applicable, to which it is a party, certified by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agentits Secretary or an Assistant Secretary;
(iij) the Administrative Agent Noteholders shall have received an acknowledgment opinion of counsel to the Company and consent (“Acknowledgment the Subsidiary Guarantors in form and Consent”), substantially in substance satisfactory to the form of Exhibit B hereto, duly executed and delivered by each GuarantorNoteholders;
(iiik) the Administrative Agent Company shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or provided all other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified due diligence materials requested by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesNoteholders; and
(xiil) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan corporate and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred other proceedings taken or to be incurred taken in connection with the transaction; provided that no such estimate transactions contemplated hereby and all documents incident thereto shall thereafter preclude the final settling of accounts as to such fees be satisfactory in substance and expenses) in each case form to the extent agreed upon in the Engagement LetterNoteholders, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Noteholders shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request.
Appears in 1 contract
Conditions to Effectiveness. This Amendment Agreement shall become effective upon the date on which as to, and binding upon, each of the undersigned Parties on the date and at the time upon which all of the following conditions have been satisfied in accordance with this Agreement (such date, the “Agreement Effective Date”):
(a) counsel to the Company shall have been received or waived executed counterparts to this Agreement by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt each of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent PE Sponsors and (ii) the Consenting Investors;
(b) counsel to the Consenting Investors shall have received executed counterparts to this AmendmentAgreement by each of (i) the Debtors and (ii) the PE Sponsors;
(c) counsel to the PE Sponsors shall have received executed counterparts to this Agreement by each of (i) the Debtors and (ii) Consenting Investors; and
(d) the Existing Plan Support Agreement2 and the Existing Equity Purchase and Commitment Agreement3 shall each have been terminated by the Debtors, executed and delivered by the financing commitments for the Exit Term Loan Facility, the Exit Revolving Credit Facility, and HVF III (each as defined in the Plan) shall have been modified or replaced so that such facilities may be entered into in connection with the Restructuring; Notwithstanding the occurrence of the Agreement Effective Date, this Agreement contemplates that (i) the Committee may become a duly authorized officer Party upon execution and delivery of the Committee Joinder to counsel to each of the other Parties and at such time (the “Committee Effective Date”) the Committee shall become obligated under this Agreement and (ii) one or more Additional Consenting Stakeholders may become Parties upon execution and delivery of counterpart signature pages of this Agreement or the Consenting Stakeholder Joinder to counsel to each other Party and at such time (a “Consenting Stakeholder Effective Date”) any such Additional Consenting Stakeholder shall become obligated under this Agreement. If (a) the Borrower and Committee does not become a Party or there is a subsequent Termination Date (bas defined in Section 8 hereof) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) SkaddenCommittee, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior any and all provisions of this Agreement referencing the “Committee” are, and shall continue to or on be, in full force and effect with respect to the Effective Date (which may include amounts constituting reasonable estimates of Parties as if such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as provisions were written without reference to such fees term and expenses(2) this Agreement shall be in full force and effect with respect to each case Party other than the Committee or (b) no Additional Consenting Stakeholders become a Party, any and all provisions of this Agreement referencing “Additional Consenting Stakeholders” are, and shall continue to be, in full force and effect with respect to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Parties as if such provisions were written without reference to such term.
Appears in 1 contract
Sources: Plan Support Agreement (Hertz Corp)
Conditions to Effectiveness. This Amendment shall become effective upon the date on which each Purchasers’ reasonable satisfaction that the following conditions precedent have been satisfied:
(a) the execution and delivery of this Amendment by the Loan Parties, the Collateral Agent and the Purchasers party hereto;
(b) The Collateral Agent shall have received a written acknowledgement by NH Expansion Credit Fund Holdings LP (“MS”), acknowledging (i) the assumption by the Collateral Agent of all of Assignor’s (as defined in the Pledge Agreement) rights with respect to the Sprout Pledged Debt in a manner consistent with Section 3 thereof, and (ii) that such Person shall treat the Collateral Agent as having all rights under Section 3 of the following shall Pledge Agreement until such time as Collateral Agent has confirmed receipt of the Second Amendment Obligation due and payable on July 31, 2023 (as may be extended).
(c) Until the indefeasible payment in full in Cash of all of the Obligations (excluding contingent indemnification obligations for which no claims have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (imade), the Company shall cause Sprout to give the Collateral Agent notice of (iiin the same manner notice is given to directors, managers, governors or individuals acting in similar capacities), and permit one representative of Collateral Agent (iii), the “Board Observer”) to attend as an observer (iv), (x), (xi) and (xii) of this Section 4but with no voting rights), each meeting (whether telephonic or in-person) of Sprout’s board of directors, any subsidiary boards and all committees thereof, and meetings of the holders of their Capital Stock (other than routine calls with such holders), and shall provide the Board Observer with copies of all materials given to members of such board or committee thereof in connection with each such meeting as and when distributed to the members. Notwithstanding the foregoing, neither Collateral Agent nor any Purchaser nor such Board Observer shall have the right to receive any information that would jeopardize or otherwise impair Sprout’s or any of their Affiliates’ attorney-client privilege, as determined in Sprout’s reasonable discretion upon advice of counsel. As a condition to attending any meetings or receiving any information described herein, Board Observer shall have entered into a confidentiality agreement on terms satisfactory to the Company and Sprout. The necessary and reasonable documented travel expenses incurred by the Board Observer in attending any board or committee meeting held in-person shall be promptly reimbursed by ▇▇▇▇▇▇. Sprout will cause its board of directors to meet telephonically or in- person not less often than quarterly. Board Observer may elect to attend each meeting in-person (if such meeting is being held in-person) or telephonically. Subject to the conditions set forth herein, Collateral Agent may change the individual identified as its Board Observer from time to time at its sole discretion. The Collateral Agent’s Board Observer rights shall automatically terminate upon the indefeasible payment in full in Cash of all of the Obligations (excluding contingent indemnification obligations for which no claims have been made). Sprout acknowledges and agrees that the Board Observer shall not owe any fiduciary or other duties to the Sprout or equityholders of Sprout or any Subsidiary or otherwise have any managerial or other duties or liabilities to such Persons, its Affiliates or their equityholders while participating as an observer. The Loan Parties and Sprout shall jointly and severally indemnify and hold harmless the Collateral Agent from and against all losses related to, caused by, resulting or arising from or in connection with the exercise of the rights granted by this Section 6(c); provided, that the Collateral Agent shall not be indemnified by any Loan Party or any of its Subsidiaries for any expenses, liabilities or losses to the extent that a court of competent jurisdiction has finally determined that such are attributable to the Collateral Agent’s (i) bad faith, gross negligence, willful malfeasance or fraud or (ii) knowing and material violation of law.
(d) the Purchasers shall have received a cumulative prepayment from the Company of $1,000,000 towards the principal amount of the outstanding Notes owed to the Purchasers pursuant to Section 3.2(d)(ii) of the Note Purchase Agreement as of the date hereof (the “Partial Prepayment”);
(e) the Purchasers shall have received payment of reasonable documented out-of- pocket fees, expenses and disbursements (including the legal fees and expenses of K&L Gates LLP)1 required to be reimbursed or paid by the Company hereunder, under Section 2.2(a) of the Note Purchase Agreement or under any other Note Document;
(f) the Purchasers shall have received such documentation as any Purchaser shall reasonably request, all in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this AmendmentPurchasers, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any eventwithout limitation, each Lender providing a portion of the Extended Facilities), together with all schedules written consents and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions secretary’s certificates with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of Parties (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendmentcustomary attachments);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiig) the Administrative Agent all certifications, representations and warranties set forth in Section 4 above shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan be true and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees correct and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)complete.
Appears in 1 contract
Sources: Note Purchase Agreement (Neptune Wellness Solutions Inc.)
Conditions to Effectiveness. This Amendment shall become effective upon upon:
(a) delivery to the date on which Collateral Agent of ten (10) originally executed copies of this Amendment, dated the Amendment Date, as executed by the Borrowers and Guarantors;
(b) the Collateral Agent having received executed forms of the attached Instructing Group Consents from each of the following shall have been received or waived by Lenders constituting Majority Lenders;
(c) delivery to the Administrative Collateral Agent in its discretion of ten originally executed copies of the Intercreditor Agreement (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xias defined below) and (xii) of this Section 4), each in form and in substance satisfactory to the applicable recipient:
Lenders and Lenders' counsel (i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇);
(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 [▇▇▇▇▇ LLP, special counsel 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 each case dated the Effective Date, addressed its discretion in regard to the Administrative 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 reasonably satisfactory to the Administrative Agent2003 Noteholders (the "Intercreditor Agreement") and other documents or instruments incident hereto or thereto which are contemplated in connection herewith or therewith;
(ivi) payment to the Administrative Collateral Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Lenders of sufficient funds received by the Canadian Borrower and each GuarantorFSLP, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes pursuant to the Organizational Documents 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 Borrower and each Guarantor since the First Amendment Effective Date or since last provided Total Commitments, to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesU.S.$50,000,000; and
(xiij) the Administrative Agent shall have received evidence that all fees payable delivery of any other documents, opinions of legal counsel, financial statements, and such other writings as may be required by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan Collateral Agent and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
Appears in 1 contract
Sources: Credit Agreement (Firstservice Corp)
Conditions to Effectiveness. This The effectiveness of this Amendment shall become effective upon the date on which is subject to satisfaction of each of the following shall conditions:
3.1 receipt by Agent of copies of this Amendment duly executed by each Borrower and Lenders;
3.2 receipt by Agent of a copy of the Amended and Restated Revolving Note duly executed by each Borrower in favor of GE Capital Bank;
3.3 receipt by Agent of a copy of the Amended and Restated Fee Letter duly executed by each Borrower in favor of GE Capital;
3.4 receipt by Agent of a copy of the Second Amendment Disclosure Letter duly executed by each Borrower;
3.5 receipt by Agent of a copy of the Acknowledgment of Parent duly executed by Landec;
3.6 receipt by Agent of a copy of the Acknowledgment of Creditor duly executed by General Electric Capital Corporation;
3.7 receipt by Agent of a certificate from an authorized person of each Borrower certifying to (a) the articles/certificate of formation or other applicable formation document and all amendments thereto, of such Borrower, certified by the secretary of the state of its jurisdiction of formation, (b) the bylaws/operating agreement or other applicable governing document, and all amendments thereto, of such Borrower, (c) resolutions of such Borrower, and (d) the incumbency and signatures of the officers or representatives of such Borrower executing this Amendment and the other Loan Documents to which it is a party on the Second Amendment Effective Date;
3.8 receipt by Agent of a certificate of Borrower Representative to the effect that (a) each condition set forth in Sections 3.12 and 3.13 have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i)satisfied, (ii), (iii), (iv), (x), (xi) and (xiib) both the Borrowers taken as a whole and each Borrower individually are Solvent after giving effect to the consummation of the transactions contemplated by this Section 4)Amendment, including the payment of all fees and expenses payable hereunder;
3.9 receipt by Agent of (a) the legal opinion of O▇▇▇▇▇, H▇▇▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇▇ LLP, special counsel for Borrowers, and (b) Squire P▇▇▇▇▇ B▇▇▇▇ (US) LLP, special Ohio counsel for GLI, each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative 3.10 receipt by Agent shall have received an acknowledgment of such other documents and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative certificates as Agent shall have received the favorable written opinion or opinions with respect may reasonably request relating to the authorization of this Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the hereby by each Borrower and (B) Skaddenany other legal matters relating to Borrowers, Arpsthe Loan Documents or the transactions contemplated hereby, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower all in form and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and substance reasonably satisfactory to the Administrative Agent;
(iv) 3.11 payment by Borrowers of all fees and other amounts due and payable by them on or prior to the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Second Amendment Effective Date, approving this Amendment, adopting including the Loan Documents to be executed by such Person, reimbursement or payment of all reasonable out-of-pocket expenses (including the reasonable fees and authorizing the execution and delivery thereof;
(vexpenses of counsel) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders incurred in connection with this Amendment;
3.12 since May 26, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes2013, there has been no Material Adverse Effect; and
(xii) 3.13 the Administrative Agent shall have received evidence that all fees payable by the Borrower on absence of any Default or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses Event of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Default.
Appears in 1 contract
Sources: Credit Agreement (Landec Corp \Ca\)
Conditions to Effectiveness. This Amendment shall become be effective upon on the date on (the “Amendment Effective Date”) upon which each of the following shall conditions precedent have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientsatisfied:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the The Administrative Agent shall have received the favorable written opinion following, each of which shall be originals, facsimiles or opinions with respect to in portable document format (.pdf), and unless otherwise specified, each dated as of the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed and each in form and substance reasonably satisfactory to the Administrative Agent and the Lenders and reasonably satisfactory to Required Lenders:
(i) counterparts of this Amendment executed by the Borrower, the Administrative AgentAgent and each Lender and a Note executed by the Borrower in favor of each Lender requesting a Note;
(ivii) the Administrative Agent shall have received resolutions a certificate of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) chief financial officer of the Borrower (A) attaching the following and each Guarantor certified by certifying that they have been prepared in good faith based upon reasonable assumptions: (I) consolidated balance sheet of Borrower and its secretary or assistant secretary as Subsidiaries and a consolidated statement of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf income of the Borrower for the year ended December 31, 2010 and each Guarantorthree month period ended June 30, certified by the secretary or assistant secretary 2011, and (II) calculations demonstrating pro forma compliance with Section 7.11 of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment, as of June 30, 2011 based on the financial statements delivered in accordance with the foregoing clause (I);
(xiii) a solvency certificate from the chief financial officer of the Borrower;
(iv) a certificate executed by a Responsible Officer of the Borrower certifying that:
(A) after giving effect to this Amendment, there is no conflict with, or default under, any material agreement of the Borrower or any of its Subsidiaries (including any such agreements entered into in respect of Indebtedness), except for such conflicts or defaults as would not reasonably be expected to have a Material Adverse Effect;
(B) all representations and warranties set forth in Section 5 of this Amendment are true and correct as of the Amendment Effective Date prior to and after giving effect to this Amendment; and 004255 000168 HOUSTON 744392.3
(A) from the Secretary or an assistant secretary of the Borrower, certificates of resolutions, incumbency and specimen signatures evidencing the identity, authority and capacity of each of the Borrower’s officers who are authorized to act in connection with this Amendment and the other documents delivered pursuant to this Section 6 and/or authorized to deliver requests for Loans pursuant to the Credit Agreement on and after the Amendment Effective Date, (B) documents and certifications evidencing that the Borrower is validly existing and in good standing in the State of Utah, and (C) copies of organizational documents of the Borrower certified by the Secretary or an assistant secretary of the Borrower or a certification that the organizational documents previously delivered to the Administrative Agent in connection with the Credit Agreement are still in full force and effect and have not been amended, modified or waived, in each case as the Administrative Agent may reasonably require;
(vi) favorable legal opinions (including an opinion regarding the enforceability of the Credit Agreement as amended by this Amendment) covering such matters as the Administrative Agent may reasonably request; and
(b) the Borrower shall have purchasedpaid, defeasedwithout duplication, discharged or redeemed at least 80% of (i) to ▇▇▇▇▇ Fargo Securities, LLC, as Arranger (the aggregate principal amount outstanding of “Arranger”), for its own account, the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement fees and expenses then due and payable to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided Arranger, (ii) to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all for the account of the applicable Lenders, any fees payable required to be paid to Lenders on or prior to the Amendment Effective Date; and (iii) other fees and expenses required to be reimbursed or paid by the Borrower on or before the Effective Date pursuant to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in fullLoan Documents, including the reasonable fees and expenses of counsel to the Administrative Agent Agent, to the extent invoiced at least one (1) Business Day to the Borrower prior to the Amendment Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 6, each Lender shall be deemed to be satisfied with each document delivered to it or on other matter required hereunder to be satisfactory to Lenders unless the Administrative Agent shall have received notice from such Lender prior to the proposed Amendment Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)specifying otherwise.
Appears in 1 contract
Sources: Multi Year Revolving Credit Agreement (Questar Corp)
Conditions to Effectiveness. This The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent in a manner satisfactory to CITBC, unless specifically waived in writing by CITBC:
(a) CITBC shall become effective upon the date on which have received each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4)following, each in form and substance satisfactory to the applicable recipientCITBC, in its sole discretion, and, where applicable, each duly executed by each party thereto, other than CITBC:
(i) the Administrative Agent shall have received this This Amendment, duly executed by Companies and delivered by a duly authorized officer of (a) the Borrower Consent, Ratification and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged Release is executed by the Administrative AgentGuarantors;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially A Revolving Loan Promissory Note in the form stated principal amount of Exhibit B hereto$65,000,000 in amendment, substitution and replacement of the Initial Revolving Note duly executed and delivered signed by each Guarantor;the Companies; and
(iii) certified copies of the Administrative Agent shall have received resolutions of the favorable written opinion or opinions with respect to Board of Directors of each of the Companies and the Guarantors authorizing the execution, delivery and performance of this Amendment and related any and all other Loan Documents executed on by any of the Effective Date Companies or the Guarantors in connection therewith, along with a certificate of incumbency certified by the secretary of each of the Companies and the transactions contemplated thereby Guarantors with specimen signatures of (A) in-house legal counsel the officers of the Companies and the Guarantors who are authorized to sign such documents, all in form and substance satisfactory to the Borrower Agent; and
(iv) Pledge Agreement signed by UTI Drilling Canada, Inc., a Delaware corporation ("UTI Canada"), granting to the Agent on behalf of the Lenders (1) a collateral assignment of the promissory note payable by Phel▇▇ ▇▇▇lling Co. ("PDC") to UTI Canada in the stated principal amount of $30,000,000 (the "Intercompany Note"), and the liens securing the Intercompany Note, and (B2) Skaddenpledging 66% of its ownership interest in PDC. The Intercompany Note evidences a loan which is to be used by PDC to acquire all of the drilling assets of Phel▇▇ Drilling International, ArpsLtd., Slate584022 Alberta Ltd. and 7003▇▇ ▇▇▇▇▇▇▇ Ltd. (collectively, the "Acquisitions"). Agent must also receive the original of the Intercompany Note duly endorsed to the Agent; and
(v) Pledge Amendment duly signed NDS pledging all of its ownership interest in NDLP; and
(vi) Pledge Amendment duly signed UTI pledging all of its ownership interest in UTI Canada; and
(vii) Pledge Agreement duly signed Nort▇▇ ▇▇, ▇.L.C. pledging all of its ownership interest in NDLP; and
(viii) Opinion from Full▇▇▇▇▇▇ & ▇awo▇▇▇ LLP▇▇, special counsel to ▇.L.P. opining that the Borrower execution, delivery and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions performance of the boards Acquisition Agreements does not violate or result in a breach of directors or default under the Agreement or any other appropriate governing body (or material agreements to which any of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of Obligors is a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;party; and
(ix) Opinion from Borrower's Canadian counsel opining that (1) PDC has the Administrative Agent shall power and authority to execute, deliver and perform the Intercompany Note and the related security agreement and other documents (collectively, the "PDC Loan Documents"), (2) the PDC Loan Documents have received a Borrowing Notice in respect been authorized by all necessary corporate action, and (3) the PDC Loan Documents are valid, legal and binding obligations of the Extended Term Loans in each case requested PDC and are enforceable against PDC, such opinion to be made on delivered to CITBC within 10 business days from the Effective Date in accordance with the Credit Agreement (after giving effect to date of this Amendment);; and
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% Copy of the aggregate principal amount outstanding of executed asset purchase agreements which evidence the Year 2006 Senior Notes using cash on hand Acquisitions (not resulting from borrowings under collectively, the Credit Agreement) or proceeds from the Year 2010 Senior Notes;"Acquisition Agreements"); and
(xi) All other documents CITBC may request with respect to any matter relevant to this Amendment or the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent transactions contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; andhereby.
(xiib) The representations and warranties contained herein and in the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan Agreement and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred other documents executed in connection with the transaction; provided that no Agreement (herein referred to as "Loan Documents"), as each is amended hereby, shall be true and correct as of the date hereof, as if made on the date hereof, except for such estimate representations and warranties as are by their express terms limited to a specific date.
(c) No Default or Event of Default shall thereafter preclude have occurred and be continuing, unless such Default or Event of Default has been otherwise specifically waived in writing by CITBC.
(d) All corporate proceedings taken in connection with the final settling of accounts as transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be satisfactory to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)CITBC.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective as of the date set forth above upon the date on which each satisfaction of the following shall have been received conditions:
(a) no Default has occurred and is continuing after giving effect to §12, and no Default will result from the execution, delivery and performance by the Borrower of this Amendment, the other Loan Documents or waived by from the consummation of the transactions contemplated herein;
(b) the Administrative Agent in its discretion shall have received a counterpart signature page to this Amendment, duly executed and delivered by the Borrower, each Guarantor, each other Loan Party and each Lender;
(except that c) the Administrative Agent may not waive receipt shall have received amended and restated Committed Loan Notes executed by the Borrower in favor of clauses each Revolver Lender requesting any such Note;
(i), (ii), (iii), (iv), (x), (xid) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendmentreceived, executed on behalf of the Lenders in accordance with their ratable outstandings, a prepayment of Committed Loans (with a corresponding termination and delivered by a duly authorized officer reduction of (athe Commitments with respect to prepayments applied to the outstanding Committed Loans) so that the Borrower Aggregate Commitments does not exceed $45,000,000 and (bii) to the Required extent requested by the Administrative Agent, Lenders shall have entered into agreements among the Lenders (including, in any eventwithout limitation, each Lender providing a portion of the Extended Facilitiesassignment and assumption agreements), together with all schedules and exhibits hereto and acknowledged by in each case, in a manner such that after the Administrative Agent;application of prepayments, the Commitment of each Revolver Lender shall be reduced to an amount equal to such Revolver Lender’s Revolver Applicable Percentage of $45,000,000.
(iie) the Administrative Agent shall have received in form and substance satisfactory to the Administrative Agent, and the Lenders an acknowledgment and consent (“Acknowledgment and Consent”), substantially executed Compliance Certificate in the form attached to Annex II as Exhibit E, computed as of Exhibit B hereto, duly executed the Second Amendment Effective Date (as defined in Annex I) (using actual 2011 fiscal year-end EBITDA in the amount of $89,384.474.01) and delivered by each Guarantordemonstrating compliance with the terms of the Credit Agreement as amended hereby;
(iiif) the Borrower shall have paid (i) all invoiced fees and expenses of (x) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower Agent’s counsel, ▇▇▇▇▇▇▇▇ PC and (By) SkaddenCapstone, Arps(ii) all fees and expenses of ▇▇▇▇▇▇▇ Lynch, SlatePierce, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLPIncorporated and (iii) all other costs and expenses of the Administrative Agent;
(g) the Administrative Agent shall have received, special in form and substance reasonably acceptable to it, a certificate of each Loan Party dated as of the Second Amendment Effective Date signed by a Responsible Officer of such Loan Party (x) certifying and attaching the authorizing resolutions adopted by such Loan Parties, and (y) in the case of the Borrower, certifying that, before and after giving effect to this Amendment, (A) the representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct on and as of the Second Amendment Effective Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date), and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement and the representations and warranties contained in Sections 5.08(b), (c), (d), (e) and (f) and Section 5.13 shall be deemed to refer to the schedules referenced therein as updated according to the terms of the Credit Agreement, (B) after giving effect to this Amendment, the Borrower is in compliance with each of the financial covenants contained in Section 7.11 of the Credit Agreement and (C) no Default or Event of Default shall have occurred and be continuing;
(h) the Administrative Agent and the Lenders shall have received a legal opinion of counsel to the Borrower Loan Parties, which shall be in form, scope and Guarantors, in each case dated the Effective Date, addressed substance reasonably satisfactory to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative AgentLenders;
(ivi) the representations and warranties set forth in this Amendment shall be true and correct as of the date of this Amendment (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date);
(j) the Administrative Agent shall have received resolutions such financial and other information requested by the Administrative Agent, Capstone, any Lender or counsel to the Administrative Agent or any Lender;
(k) the Administrative Agent shall have received, for the pro rata account of the boards Lenders (including Bank of directors or other appropriate governing body America and its Affiliates, in each case in its role as a Lender as applicable) timely executing and delivering a signature page to this Amendment, an amendment fee equal to one hundred basis points (or of the appropriate committee thereof1.00%) of the Borrower and each Guarantor certified by its secretary or assistant secretary as Commitment (after taking into account the reduction of the Aggregate Commitments on the Second Amendment Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person) of, and authorizing outstanding principal amount of the execution and delivery thereof;Term Loans held by, each such Lender; and
(vl) the Administrative Agent shall have received specimen signatures such additional information regarding the Loan Parties and/or their assets and properties as reasonably requested by the Administrative Agent or any Lender, and confirmations, affirmations or amendments to any of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and applicable Loan Parties, in each Guarantor since the First Amendment Effective Date or since last provided case reasonably acceptable to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Required Total Lenders.
Appears in 1 contract
Sources: Credit Agreement (Media General Inc)
Conditions to Effectiveness. This Amendment shall become effective upon the date on which each satisfaction of the following shall have been received or waived conditions precedent (such date, the “Incremental Tranche B Facility Effective Date”):
(a) receipt by the Administrative Agent in its discretion of executed signature pages to this Amendment from the Borrower and each Incremental Tranche B Term Lender;
(except that b) receipt by the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)customary closing certificate, substantially in the form attached hereto a Exhibit A, and legal opinions of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇▇ & Traurig, P.A. and ▇▇▇▇▇▇ LLP▇. ▇▇▇▇, special counsel Esq., substantially in the forms attached hereto as Exhibit B-1 and Exhibit B-2, respectively, and an instrument of acknowledgment and confirmation, substantially in the form attached hereto as Exhibit C, executed by each Loan Party with respect to the guarantees and security interests created under the Security Documents and the effectiveness and enforceability thereof for the benefit of the Incremental Tranche B Term Loans;
(c) receipt by the Administrative Agent of a certificate from the chief financial officer of the Borrower (or other senior executive officer of the Borrower satisfactory to the Administrative Agent) in form and substance reasonably acceptable to the Administrative Agent, certifying as to the solvency of the Borrower and Guarantors, its Subsidiaries considered as a whole after giving effect to the Incremental Tranche B Term Loans;
(d) compliance by the Borrower with the financial covenants contained in each case dated the Effective Date, addressed to Credit Agreement and receipt by the Administrative Agent and the Lenders and of a certificate of a Responsible Officer in a form reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of certifying that the Borrower and each Guarantor certified by its secretary or assistant secretary as Parent shall be in compliance with the financial covenants in Section 7.1 of the Effective DateCredit Agreement, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made case, on the Effective Date in accordance with the Credit Agreement (a pro forma basis after giving effect to this Amendment)the Incremental Tranche B Term Loans;
(xi) receipt by the Administrative Agent of (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Parent and its subsidiaries, for the three most recently completed fiscal years ended at least 90 days before the Incremental Tranche B Facility Effective Date and (b) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Parent and its subsidiaries, for each subsequent fiscal quarter ended at least 45 days before the Incremental Tranche B Facility Effective Date; provided that filing of the required financial statements on form 10-K and form 10-Q by Parent will satisfy the foregoing requirements and (ii) there shall not have been any material adverse change in the consolidated financial condition of Parent, the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting and their subsidiaries from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notesthat reflected in such consolidated financial statements;
(xif) to the extent requested at least 5 days prior to the proposed Incremental Tranche B Facility Effective Date, receipt by the Administrative Agent and Incremental Tranche B Term Lenders sufficiently in advance of the Incremental Tranche B Facility Effective Date, of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(g) (i) the Borrower shall have repaid accuracy in all material respects (and in all respects if qualified by materiality) of the Term Loans under representations and warranties in the Credit Agreement to and (ii) there being no Default or Event of Default in existence at the extent contemplated by time of, or after giving effect to, the “Lender Commitments” section of the Incremental Tranche B Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesLoans; and
(xiih) the Administrative Agent shall have received evidence that payment of all fees payable by the Borrower on or before the Effective Date and expenses due to the Administrative Agent, JPMorgan the Lead Arrangers, the Bookrunners and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to receipt by the Administrative Agent of authorization from the Borrower to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of deduct such fees and expenses incurred or to be incurred in connection with from the transaction; provided that no such estimate shall thereafter preclude proceeds of the final settling of accounts as to such fees and expenses) in each case to initial fundings under the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Incremental Tranche B Term Loans.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective effective, upon the date on which each Effective Date, subject to the satisfaction of the following shall have been received conditions on or waived prior to such date:
(a) the receipt by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4)Amendment, duly executed, completed and delivered by the Agent, the Banks and the Borrowers, and consented to by the Parent;
(b) the receipt by the Agent and the Banks of replacement Revolving Notes evidencing Base Rate Loans, Alternate Base Rate Loans and Eurodollar Loans, duly executed by the Borrowers and payable to the order of each Bank;
(c) the receipt by the Agent of such additional Security Documents or modifications of the existing Security Documents as may be requested by the Agent, duly executed by the Parent and/or each Borrower which is a party thereto, and the Collateral Agent, in each case in form and substance satisfactory to the applicable recipient:Agent;
(id) the Administrative receipt by the Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion such modifications of the Extended Facilities)Inter- creditor Agreement as may be requested by the Agent, together with all schedules duly executed by the Collateral Agent and exhibits hereto the Senior Noteholders, and acknowledged by the Administrative Borrowers, the Parent and each other new Subsidiary, in form and substance satisfactory to the Agent;
(iie) the Administrative receipt by the Agent shall have received an acknowledgment of a Guaranty Agreement and consent (“Acknowledgment and Consent”), substantially in such Security Documents as may be requested by the form of Exhibit B heretoAgent, duly executed and delivered by each Guarantornew Subsidiary (other than Leasing) and in form and substance satisfactory to the Agent;
(iiif) the Administrative receipt by the Agent shall have received of a certificate of the favorable written opinion Secretary or opinions an Assistant Secretary of the Parent, each Borrower and each other new Subsidiary, in form and substance satisfactory to the Agent, with respect to the Amendment officers of the Parent, the Borrowers and related the other new Subsidiaries authorized to deliver this Amendment, the replacement Revolving Notes and the other supplemental Loan Documents executed on contemplated hereby, to which shall be attached copies of the Effective Date resolutions and the transactions contemplated thereby of (A) in-house legal counsel bylaws referred to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agentsuch certificate;
(ivg) the Administrative receipt by the Agent shall have received resolutions of the boards a certificate of directors or other appropriate governing body (or incorporation of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantornew Subsidiary, certified by the secretary or assistant secretary Secretary of such Borrower or GuarantorState of its jurisdiction of incorporation;
(vih) the Administrative receipt by the Agent shall have received any changes of a certificate of good standing with respect to the Organizational Documents of the Parent, each Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Dateother new Subsidiary, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries Secretary of State of its jurisdiction of incorporation;
(i) the respective jurisdictions receipt by the Agent of formation of the Borrower and each Guarantor a certificate as to the due existence solvency of the Parent and good standing its Subsidiaries, duly executed by the chief financial officer of such Personthe Parent and in form and substance satisfactory to the Agent;
(ixj) the Administrative receipt by the Agent shall have received a Borrowing Notice of an opinion of counsel to the Parent, the Borrowers and the other new Subsidiaries as to such matters as may be requested by the Agent or the Required Banks, in respect form and substance satisfactory to the Agent and the Required Banks;
(k) the receipt by the Agent of such other documents, certificates, instruments and opinions as the Extended Term Loans Agent may reasonably request; and
(l) the receipt by the Agent of all fees and expenses payable to the Agent and the Banks in each case requested to be made on the Effective Date in accordance connection with the Credit Agreement (after giving effect to and this Amendment);
(x) Amendment including without limitation, the Borrower shall have purchased, defeased, discharged or redeemed at least 80% reasonable legal fees and other reasonable out of pocket expenses of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders Agent and each Bank incurred in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective as of the date hereof upon the date on which satisfaction of each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientconditions precedent:
(ia) the Administrative The Agent shall have received a fully-executed copy of this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities)Borrower, together with all schedules the Lenders and exhibits hereto and acknowledged by the Administrative Agent;
(iib) the Administrative The Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially a fully-executed copy of a Reaffirmation of Guaranty in the form of Exhibit B attached hereto, duly executed and delivered by each Guarantorof the Guarantors;
(iiic) the Administrative Agent No Default or Event of Default shall have received the favorable written opinion or opinions with respect occurred and be continuing;
(d) The Borrower shall have paid to the Amendment Agent, for the respective pro rata accounts of the Lenders, an amendment fee in the amount of $100,000, which fee shall be non-refundable and related Loan Documents executed on fully earned as of the Effective Date date hereof;
(e) The Borrower shall have paid all outstanding fees and expenses of the Agent's legal counsel and all fees and expenses of the Agent's legal counsel incurred in connection with this Amendment; and
(1) The Borrower shall have delivered to the Agent and the transactions contemplated thereby Lenders a written consent from Thrivent Financial for Lutherans, as successor in interest to Aid Association for Lutherans, consenting to the execution and delivery by the Borrower of (Ai) in-house legal counsel to a second priority mortgage, security agreement and fixture filing in favor of the Borrower Agent, for the benefit of the Lenders, covering the Borrower's headquarters building and (B) Skadden, Arps, Slate, associated real estate located at 6744 South ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇ LLP▇▇, special counsel Wisconsin, and (ii) a third priority mortgage, security agreement and fixture filing in favor of U.S. Bank National Association, as Card Processor, covering the Borrower's headquarters building and associated real estate at the foregoing location; or
(2) The Borrower shall have (i) delivered to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders a written notice that the Borrower has not been able to obtain the consent described in the foregoing Section 4.6(f)(1) and reasonably satisfactory elects instead to proceed under the provisions of this Section 4.6(f)(2), and (ii) paid to the Administrative Agent;
(iv, pursuant to Sections 3.3(c) the Administrative Agent shall have received resolutions and 3.13 of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term , a prepayment of Revolving Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)less than $7,000,000.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Midwest Express Holdings Inc)
Conditions to Effectiveness. This Amendment shall become effective upon effective, as of the date on which each first written above (the “Effective Date”), upon satisfaction of the following conditions precedent (except to the extent that satisfaction of any such condition is provided for in the post-closing letter referred to in Section 21(a)(xiv)):
(a) The undersigned holders of Notes shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4)following, each in form and substance satisfactory to such holders, in their sole discretion, duly executed and delivered by each of the applicable recipientparties thereto:
(i) the Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) Amendment No. 5 to Guaranty Agreement, dated as of even date herewith, with respect to the Administrative Agent shall have received an acknowledgment Guaranty Agreement;
(iii) the Third Amendment, Consent and consent Waiver to the Credit Agreement;
(“Acknowledgment iv) a Pledge Agreement, in the form of Exhibit A hereto, from the Guarantor, Pulitzer Technologies, Inc., and Consent”)certain other Subsidiaries of the Guarantor;
(v) a Security Agreement, substantially in the form of Exhibit B hereto, duly from the Guarantor and each of its Subsidiaries except Star Publishing Company and TNI Partners;
(vi) Collateral Agency Agreement, in the form of Exhibit C hereto;
(vii) Trademark Security Agreement, in the form of Exhibit D hereto;
(viii) Copyright Security Agreement, in the form of Exhibit E hereto;
(ix) Deeds of Trust (the “Deeds of Trust”), in the respective forms set forth as Exhibits F-1, F-2 and F-3 hereto, from the Company;
(x) Deposit Account Control Agreements from Bank of America, in respect of the Intercompany Account;
(xi) Subsidiary Guaranty Agreement, in the form set forth as Exhibit G hereto, from each Subsidiary of the Guarantor other than Star Publishing Company and TNI Partners;
(xii) Certificate dated the Effective Date, signed by the President or a Vice President of the Company, to the effect that (a) the representations and warranties of the Company set forth in Section 20 are true and correct on the Effective Date, (b) the Company and each of its Subsidiaries has performed all of its obligations under this Section 21 which are to be performed on or prior to the Effective Date, and (c) after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing;
(xiii) Certificate of the Secretary or Assistant Secretary of the Company and each of its Subsidiaries, dated the Effective Date, certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of this Amendment and the other Transaction Documents; and
(xiv) the Company and the Guarantor shall have executed and delivered by each Guarantor;the post-closing letter attached as Exhibit H hereto.
(iiib) the Administrative Agent The Company shall have received prepaid $120,000,000 in principal amount of the favorable written opinion or opinions Notes, together with respect interest accrued thereon to the Amendment date of payment, but without payment of the Yield-Maintenance Amount or any premium (leaving $186,000,000 in principal amount of the Notes outstanding immediately after giving effect to such prepayment).
(c) The Guarantor shall have established the Restricted Cash Reserve Account, the Excess Cash Flow Reserve Account, the Asset Sale Proceeds Reserve Account and related Loan Documents executed the Intercompany Account.
(d) On or prior to the Effective Date, the Guarantor shall enter into an agreement with ▇▇▇ and ▇▇▇ Procurement Solutions Co. providing for the set-off of all amounts owing by the Guarantor to ▇▇▇ Procurement Solutions Co. as of the Effective Date against all amounts owing by ▇▇▇ to the Guarantor (the balance remaining after such set-off being the ▇▇▇ Payable).
(e) The Company shall cause $9,000,000 held by it on the Effective Date as Restricted Cash (as defined in the Limited Liability Company Agreement) to be deposited into the Restricted Cash Reserve Account.
(f) Herald shall have ceased to be a Member (as defined in the Limited Liability Company Agreement) of the Company and shall have no rights under the Limited Liability Company Agreement, and the transactions contemplated thereby of (A) in-house legal counsel Limited Liability Company Agreement shall have been amended to eliminate Section 7.2 thereof and any other provisions that grant rights to Herald. In exchange for the foregoing, Herald shall have received a claim against the Company, ranking subordinate to the Borrower Notes, in each case on terms and conditions satisfactory to the Required Holders, that (Bi) Skaddenmay only be sold to or redeemed by the Company or any Subsidiary for cash at such time after April 28, Arps2013 as none of the Notes is outstanding or (ii) may be exchanged for common stock of ▇▇▇ at any time (regardless of whether any Notes are then outstanding).
(g) The representations and warranties of the Company, Slatecontained in this Amendment shall be true on and as of the Effective Date (except for those which expressly relate to an earlier date, which shall be true on and as of such earlier date).
(h) The undersigned holders of Notes shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇ LLP, who are acting as the special counsel to the holders of Notes in this transaction, and from Lane & ▇▇▇▇▇▇▇▇ LLP and Sidley Austin LLP, counsel for the Company, their respective opinions dated the Effective Date, in form and substance satisfactory to such holders of Notes.
(i) The Company shall have paid the holders of Notes, ratably in accordance with the respective principal amounts of Notes held by them, a fee in the aggregate amount of $930,000. Such fee shall be paid by wire transfer of immediately available funds in accordance with the payment instructions set forth in the Purchaser Schedule to the Note Agreement, or as otherwise directed by such holders of Notes in a written notice to the Company.
(j) Without limiting the provisions of paragraph 11B of the Note Agreement, the Company shall have paid on or before the Effective Date the fees, charges and disbursements of: (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇ LLP, special counsel to the Borrower holders of Notes, (ii) ▇▇▇▇▇▇, Del Genio, ▇▇▇▇▇, & Co. LLC, (iii) The Bank of New York Mellon Trust Company, as collateral agent, and Guarantorsits counsel, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary ▇▇▇▇▇ ▇▇▇▇▇ LLP as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes local counsel to the Organizational Documents holders of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided Notes, to the Administrative Agent extent reflected in a statement of each such Person rendered to the Company at least one Business Day prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;.
(viik) Each condition precedent in Section 8 of the Administrative Agent Guaranty Amendment shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)satisfied.
Appears in 1 contract
Conditions to Effectiveness. (a) This Amendment shall become effective upon the date on which each as of the following Amendment Effective Date when the Agent has confirmed (and has so notified the Borrower) that (i) all conditions precedent set forth in Section 5(b) have been satisfied and (ii) counterparts hereof have been duly executed by the Borrower and all of the Lenders and delivered to the Agent. The Agent agrees to give the Borrower prompt written confirmation of the effectiveness hereof.
(b) The Borrower shall have delivered, or cause to have been received or waived delivered, the instruments described below duly executed and where applicable, acknowledged by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xiBorrower or Subsidiary Guarantor(s) and (xii) party thereto prior to effectiveness of this Section 4), each in form and substance satisfactory to the applicable recipientAmendment:
(i) the Administrative Agent shall have received multiple original counterparts of this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged such number as may be requested by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent eight (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor8) Renewal Notes;
(iii) amendments to each of the Administrative Agent shall have received the favorable written opinion or opinions with respect Mortgages, in form reasonably acceptable to the Amendment and related Loan Documents executed on the Effective Date and Agent, to reflect the transactions and agreements contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantorsby this Amendment, in each case dated such numbers as may be requested by the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions certificates of the boards relevant secretary or assistant secretary of directors or other appropriate governing body (or of the appropriate committee thereof) each of the Borrower and each Subsidiary Guarantor certified by its secretary certifying as to the absence of any change in their respective Articles or assistant secretary Certificates of Incorporation and bylaws since November 18, 2003 or, in the case of any which have been amended since November 18, 2003, certifying as to the correctness and completeness of the Effective Date, approving this Amendment, adopting the Loan Documents copies thereof attached to be executed by such Person, and authorizing the execution and delivery thereofcertificate;
(v) the Administrative Agent shall have received certificates of incumbency and specimen signatures of all officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each GuarantorSubsidiary Guarantor who are authorized to execute this Amendment and the other Loan Documents contemplated by this Section 5 on behalf of such Persons, certified each such certificate being executed by the secretary or an assistant secretary of such the Borrower or such Subsidiary Guarantor, as the case may be;
(vi) copies of corporate resolutions approving this Amendment and the Administrative Agent shall have received any changes to other Loan Documents contemplated by this Section 5 and authorizing the Organizational Documents transactions contemplated herein and therein, duly adopted by the respective boards of directors of the Borrower and each Guarantor since Subsidiary Guarantor, accompanied by certificates of the First Amendment Effective Date secretary or since last provided an assistant secretary of the Borrower or such Subsidiary Guarantor, as the case may be, to the Administrative Agent prior to the Effective Date, certified as effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by its secretary unanimous consent of the board of directors of the Borrower or assistant secretarysuch Subsidiary Guarantor, as the case may be, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the date of such certificate;
(vii) results of searches of the Administrative Agent shall have received any changes to the Operating Documents of UCC records for the Borrower and each Subsidiary Guarantor since of the First Amendment Effective Date or since last provided State where such Person is located (within the meaning of the UCC) from a source acceptable to the Administrative Agent prior to the Effective Date, certified as and reflecting no Liens against any of the Effective Date as true Collateral other than Liens in favor of the Agent or the Collateral Agent (or their predecessors in interest), other than Permitted Liens and correct by its secretary or assistant secretaryLiens permitted under Section 8.3 of the Credit Agreement;
(viii) the Administrative Agent shall have received certificates issued as opinion of a recent date by the Secretaries of State of the respective jurisdictions of formation of counsel to the Borrower and each Guarantor the Subsidiary Guarantors, in the form attached hereto as to Annex B, with such changes thereto as may be approved by the due existence and good standing of such PersonAgent;
(ix) opinions of special counsel in the Administrative Agent shall have received a Borrowing Notice in respect states of California, Louisiana, Michigan, Mississippi, New Mexico, Oklahoma, Texas and Wyoming, concerning the sufficiency of the Extended Term Loans Mortgages in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after such state, giving effect to the execution and delivery of the amendments thereto referred to in clause (iii) of this AmendmentSection 5(b), in form and substance reasonably acceptable to the Agent;
(x) payment of all fees due and payable by the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings hereunder and under the Credit Agreement) or proceeds other Loan Documents and reimbursement from the Year 2010 Senior Notes;
(xi) Borrower, or legal counsel for the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that payment from the Borrower, for (i) all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the reasonable fees and expenses of counsel to the Administrative Agent for which the Borrower is responsible pursuant to applicable provisions of this Amendment and for which invoices have been presented as of or prior to the extent invoiced at least one Amendment Effective Date, and (1ii) Business Day prior unless filing and recordation is agreed to or on be the Effective Date (which may include amounts constituting reasonable estimates responsibility of such the Borrower, estimated fees charged by filing officers and expenses other public officials incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude filing and recordation of the final settling of accounts as to such fees and expenses) in each case amendments to the extent agreed upon Mortgages referred to in clause (iii) of this Section 5(b), for which invoices have been presented as of or prior to the Engagement Amendment Effective Date;
(xi) a letter by an Executive Officer of the Borrower updating the Supplemental Disclosure Letter, dated March 31, 2010, among in form and substance acceptable to the Administrative Agent, JPMorgan and ; and
(xii) a certificate of the Chief Financial Officer of the Borrower attaching a copy of the Senior Indenture, and certifying that (A) the incurrence of Indebtedness hereunder up to the Revolving Period Commitment Amount (after giving effect to the notice in Section 3 hereof) is permitted as of the date hereof by the Senior Indenture and (B) the Liens created under the Security Instruments constitute “Engagement Letter”Permitted Liens” thereunder (as such term is defined therein), showing all relevant calculations.
Appears in 1 contract
Sources: Credit Agreement (KCS Energy Inc)
Conditions to Effectiveness. This Amendment shall become effective upon as of the date on which each of the following conditions has been satisfied (the “Effective Date”):
(a) Borrowers shall have been received or waived delivered to Agent this Amendment, duly executed by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt an authorized officer of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:Borrower;
(ib) [Reserved.];
(c) all representations and warranties of Borrowers contained herein shall be true and correct in all material respects as of the Administrative Effective Date (and such parties’ delivery of their respective signatures hereto shall be deemed to be its certification thereof);
(d) [Reserved.];
(e) Agent shall have received from Borrowers the $50,000 of fees owing pursuant to Section 6(i) of this Amendment, executed Amendment and delivered by a duly authorized officer of (a) the Borrower Agent’s reasonable out-of-pocket legal fees and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agentexpenses;
(iif) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”i) a fully executed waiver to the Subordinated Loan Agreement (as that term is defined in the Subordination Agreement (Penta), substantially ) in the form attached hereto as Exhibit A, (ii) a fully executed copy of the Share Purchase Agreement, dated as of the date hereof, between Penta Mezzanine SBIC Fund I, L.P. and Parent in the form attached hereto as Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative fully executed Warrant No. W-4 in the form attached hereto as Exhibit C.
(g) Agent shall have received the favorable written opinion or opinions with respect (i) a fully executed waiver to the Amendment Subordinated Loan Agreement (as that term is defined in the Subordination Agreement (Subordination Agreement (JL-BBNC) in the form attached hereto as Exhibit D, (ii) a fully executed copy of the Share Purchase Agreement, dated as of the date hereof, between JL-BBNC Mezz Utah, LLC and related Loan Documents Parent in the form attached hereto as Exhibit E and (iii) a fully executed on copy of the Effective Date and Warrant, dated as of the transactions contemplated thereby of date hereof, issued by Parent to Subordinated Lender in the form attached hereto as Exhibit F.
(Ah) in-house legal counsel The Agent shall have received (i) evidence satisfactory to the Borrower and (B) Skadden, Arps, Slate, ▇▇Agent that the ▇▇▇▇▇ & ▇. ▇▇▇ ▇▇▇▇▇ LLPTrust, special counsel under Trust Agreement dated November 30, 1993 (the “▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ Trust”) has invested at least $2,500,000 in cash in the Equity Interests of Parent, (ii) a fully executed copy of the Share Purchase Agreement, dated as of the date hereof, among Parent and ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ Trust in the form attached hereto as Exhibit G, (iii) evidence that ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ Trust surrendered to the Borrower Parent that certain Warrant No. 1, dated as of September 5, 2014, issued by TCC to ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ and Guarantorsassumed by Parent on September 16, in each case dated the Effective Date2014, addressed to the Administrative Agent and the Lenders such warrant has been cancelled and reasonably satisfactory to the Administrative Agent;
(iv) fully executed copies of the Administrative Warrants, dated as of the date hereof, issued by Parent to ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ Trust in the forms attached hereto as Exhibit H.
(i) The Agent shall have received resolutions (i) a fully executed copy of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary Share Purchase Agreement, dated as of the Effective Datedate hereof, approving this Amendmentamong Parent and Little Harbor, adopting LLC in the Loan Documents to be form attached hereto as Exhibit I and (ii) a fully executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf copy of the Borrower and each GuarantorWarrant, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified dated as of the Effective Date as true and correct date hereof, issued by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as Parent to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchasedLittle Harbor, defeasedLLC, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).form attached hereto as Exhibit J.
Appears in 1 contract
Sources: Credit and Security Agreement (Twinlab Consolidated Holdings, Inc.)
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 upon as of the date on which each of (the “Second Amendment Effective Date”) the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientconditions are satisfied:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower Administrative 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 Required Lenders Administrative Agent’s receipt of a reaffirmation (including, in any event, each Lender providing a portion the “Reaffirmation”) of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged Guarantee by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)Guarantors, substantially in the form of Exhibit B heretoA, duly executed and delivered by each GuarantorGuarantor party thereto;
(iiic) the Administrative Agent’s receipt of (i) such documents or certificates with respect to legal matters or corporate or other proceedings related to this Amendment or the transactions contemplated hereby as may be reasonably requested by the Administrative Agent shall have received the and (ii) a favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and dated the date hereof) of counsel to the Borrower and the Guarantors, in form and substance reasonably satisfactory to the Administrative AgentAgent 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;
(ivd) 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 contained in Section 4.02 of the Credit Agreement (as amended by this Amendment);
(e) the Administrative Agent’s receipt of 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 this Amendment, will be consummated;
(f) the Administrative 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 permit 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 received resolutions 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 boards aggregate Revolving Credit Exposure set forth in Schedule 2.01 for such Lender under the Credit Agreement as amended hereby. The Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of directors or other appropriate governing body any Eurodollar Loans and the reallocation described in this clause (or g), in each case on the terms and in the manner set forth in Section 2.15 of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;Credit Agreement; and
(vh) the Administrative Agent shall have received specimen signatures Agent’s (and its affiliates) and the Lenders’ receipt of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower all fees and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower expenses then due and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings owing under the Credit Agreement) , the other Financing Documents or proceeds from under any other applicable letter agreement, including, to the Year 2010 Senior Notes;
(xi) extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the other applicable document. The Administrative Agent shall have received evidence that all fees payable by notify the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendmentof the Second Amendment Effective Date, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees notice shall be conclusive and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)binding.
Appears in 1 contract
Sources: Credit Agreement (Cubic Corp /De/)
Conditions to Effectiveness. (a) This Amendment and Waiver (other than Sections 1(a), 4(b), 5(c), 7(b), 10 and 11 hereof, which shall become effective upon as described in paragraph (b) below) shall become effective as of the date on which each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
first above written when (i) the Administrative Agent shall have received counterparts of this AmendmentAmendment and Waiver that, executed and delivered by a duly authorized officer when taken together, bear the signatures of (a) the Holdings, each Borrower and (b) the Required Lenders (includingLenders, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent agreement effecting the termination of the provisions of the Apollo Management Agreement requiring the payment of annual management fees which bears the signatures of all parties thereto, (“Acknowledgment and Consent”iii) there shall have been consummated (A) the Qualified Public Offering contemplated by the Registration Statement on Form S-1, Registration No. 333-110250 (substantially as in effect on the date hereof), (B) another Qualified Public Offering on terms substantially similar to the terms of the Qualified Public Offering referred to in the form immediately preceding clause (A) or (C) a Qualified IPO, provided in the case of Exhibit B clauses (B) and (C) under this clause (iii) that such transaction must be consummated within one year of the date hereof, and (iv) all fees (including the amendment fees contemplated by Section 13 hereof) and expenses required to be paid or reimbursed by the US Borrower under or in connection with the Credit Agreement shall have been paid or reimbursed, as applicable.
(b) Sections 1(a), 4(b), 5(c), 7(b), 10 and 11 of this Amendment and Waiver shall become effective as of the date first above written when:
(i) the conditions described in clauses (i) and (iv) of paragraph (a) of this Section 11 shall have been satisfied;
(ii) the Collateral Agent shall have received from NASC (as defined in Annex A hereto) pursuant to the US Collateral and Guarantee Agreement and the other Security Documents, duly as applicable, together with an instrument of transfer executed in blank satisfactory to the Collateral Agent, the NSULC1 Note (as defined in Annex A hereto) to secure the Foreign Obligations of the Foreign Credit Parties and delivered by each Guarantorto secure the Obligations of the US Credit Parties;
(iii) the Collateral Agent shall have received pursuant to the US Collateral and Guarantee Agreement or the other Security Documents, as applicable, together with (other than in the case of Equity Interests of NSULC1) an instrument of transfer executed in blank, all in form and substance satisfactory to the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (▇) from NASC, 100% of the Equity Interests of NSULC1 (as defined in Annex A hereto), provided that 100% of such Equity Interests shall secure the Foreign Obligations of the Foreign Credit Parties but only 65% of such Equity Interests shall secure the Obligations of the US Credit Parties, (B) from NSULC1, 100% of the Equity Interests of each of Newco and US Holdco (each as defined in Annex A hereto) and approximately 99% of the Equity Interests of Canadian LP (as defined in Annex A hereto), (C) from Newco, approximately 1% of the Equity Interests of Canadian LP and (D) from NSULC2, 100% of the Equity Interests of the Canadian Borrower, in each of the cases (B), (C) and (D), to secure the Foreign Obligations of the Foreign Credit Parties;
(iv) the Collateral Agent shall have received from each of GSL Corporation and US Holdco, together with an instrument of transfer executed in blank, all in form and substance satisfactory to the Collateral Agent, all the Equity Interests held by GSL Corporation and US Holdco, respectively, in Great Salt Lake Minerals Corporation, in each case to secure the Foreign Obligations of the Foreign Credit Parties and to secure the Obligations of the US Credit Parties.
(v) the Collateral Agent shall have received from Canadian LP pursuant to the applicable Security Documents, together with (other than in the case of Equity Interests of NSULC2) an instrument of transfer executed in blank, all in form and substance satisfactory to the Collateral Agent, (A) 100% of the Equity Interests of NSULC2 and (B) the Sifto Note (as defined in Annex A hereto), in each case to secure the Foreign Obligations of the Foreign Credit Parties;
(vi) Holdings and each Borrower shall have complied with Section 6.11 of the Credit Agreement with respect to the Restructuring Transactions and each of the Subsidiaries formed pursuant to the Restructuring Transactions other than, for the avoidance of doubt, the New Canadian Borrower, as to which compliance with Section 6.11 of the Credit Agreement need only occur upon the consummation of Step 10(b) of the Restructuring Transactions. Without limiting the generality of the foregoing, the Collateral Agent shall have received (A) with respect to NSULC1, NSULC2, Canadian LP and Newco, duly authorized and executed counterparts of supplements to each of (i) the Foreign Guaranty and (ii) the Security Documents that any such Foreign Subsidiary would have been required to duly authorize, execute and deliver on the Initial Borrowing Date if the same were a Credit Party on such date and (B) with respect to US Holdco, a duly authorized and executed counterpart of a supplement to the US Collateral and Guarantee Agreement;
(vii) The Administrative Agent shall have received such documents and certificates as the Administrative Agent may reasonably request in a written communication prior to the date hereof relating to the organization, existence and good standing of NSULC1, NSULC2, Canadian LP, Newco and US Holdco, the authorization of this Amendment and Waiver and any other legal matters relating to NSULC1, NSULC2, Canadian LP, Newco and US Holdco, all in form and substance satisfactory to the Administrative Agent;
(viii) The Administrative Agent shall have received copies of, and shall be reasonably satisfied with the form of, all documentation in respect of the NSULC1 Note and the Sifto Note (each as defined in Annex A hereto);
(ix) Holdings and each of its Subsidiaries shall have taken any such additional actions that have been requested in a written communication by the Administrative Agent prior to the date hereof and are necessary or desirable, in the reasonable judgment of the Administrative Agent, to perfect the security interests granted to the Collateral Agent pursuant to the applicable Security Documents; and
(x) the Administrative Agent shall have received the favorable written opinion or customary opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (Ai) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPLLP with respect to this Amendment and Waiver, special US Holdco and the transactions contemplated by this Amendment and Waiver and (ii) Canadian counsel to NSULC1, NSULC2, Canadian LP and Newco with respect to this Amendment and Waiver, such entities and the Borrower transactions contemplated by this Amendment and GuarantorsWaiver, in each case dated the Effective Date, addressed in form and substance reasonably satisfactory to the Administrative Agent and the Lenders and covering such other matters as are reasonably satisfactory to requested by the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Sources: Credit Agreement (Compass Minerals International Inc)
Conditions to Effectiveness. This Amendment shall become effective upon the date on which each The effectiveness of this Agreement is subject to satisfaction of the following shall have been received or waived by the conditions precedent:
(a) The Administrative Agent in its discretion (except that the Administrative Agent may not waive Agent’s receipt of clauses the following, each of which shall be originals or copies unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (i)or, (ii)in the case of certificates of governmental officials, (iii), (iv), (x), (xia recent date before the Closing Date) and (xii) of this Section 4), each in form and substance reasonably satisfactory to the applicable recipientAdministrative Agent:
(i) the Administrative Agent shall have received executed counterparts of this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentAgreement;
(ii) a Note executed by the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially Borrower in the form favor of Exhibit B hereto, duly executed and delivered by each GuarantorLender requesting a Note;
(iii) the Administrative Agent shall have received Security Agreement (together with each other Security Agreement Supplement delivered pursuant to Section 6.11, in each case as amended, the favorable written opinion or opinions with respect to the Amendment and related “Security Agreement”), duly executed by each Loan Documents executed on the Effective Date and the transactions contemplated thereby of Party, together with:
(A) in-house legal counsel certificates representing the pledged equity referred to the Borrower therein accompanied by undated stock powers executed in blank (except such certificates and stock powers required to be delivered under Section 6.14);
(B) Skaddenproper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions necessary in order to perfect in the United States the Liens created under the Security Agreement, Arpscovering the Collateral described in the Security Agreement in which a security interest can be perfected by filing such financing statements; and
(C) completed requests for information, Slatedated on or before the Closing Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements.
(iv) executed counterparts of the Fee Letter;
(v) such certificates of resolutions, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing in its jurisdiction of organization;
(vii) a customary opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective DateLoan Parties, addressed to the Administrative Agent and each Lender;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying that (A) the conditions specified in Sections 4.03(a) and 4.03(b) have been satisfied, (B) there has been no event or condition since December 31, 2010 that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect, and (C) there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect; and
(ix) all documentation and other information about the Borrower and the Guarantors as has been reasonably requested by the Administrative Agent or Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and reasonably satisfactory anti-money laundering rules and regulations, including without limitation the PATRIOT Act to the extent requested more than three Business Days prior to the Closing Date.
(b) Any fees required to be paid on or before the Closing Date shall have been paid as of the Closing Date to the extent invoiced prior to the Closing Date.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of one external counsel to the Administrative Agent (directly to such counsel on the Closing Date if requested by the Administrative Agent;) to the extent invoiced at least two Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(ivd) The Closing Date shall have occurred on or before January 26, 2012. Without limiting the generality of the provisions of the last paragraph of Section 9.03, (i) for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by notice from such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent Lender prior to the Effective Date, certified as true and correct by proposed Closing Date specifying its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)objection thereto.
Appears in 1 contract
Sources: Credit Agreement (FX Alliance Inc.)
Conditions to Effectiveness. This Amendment The consent provided in Section 2.1 and the amendments contained in Section 2.2 shall become effective upon on the date (the “Effective Date”) that the following conditions have been satisfied in full or waived by the Required Lenders:
(a) Administrative Agent shall have received one or more counterparts of (i) this Amendment No. 2 executed and delivered by the Loan Parties, the Required Lenders (including the Lenders who are listed in Schedule I set forth in Section 2.2(a) hereof with an Additional Term Loan Commitment) and Administrative Agent, (ii) the Assignment of Representations, Warranties, Covenants and Indemnities, in the form attached hereto as Exhibit A, executed and delivered by Holdings and Administrative Agent, (iii) an amendment and restatement, each in the form of Exhibit B-1 of each Note held by a Lender whose commitment is being increased hereunder, each dated the Amendment No. 2 Effective Date and between the maker of such Note and such Lender and (iv) the other documents listed on which each the closing checklist attached hereto as Exhibit E.
(b) Administrative Agent shall have received duly executed copies of the following ▇▇▇▇▇▇ Purchase Agreement, certified as correct and complete by Holdings, and all other ▇▇▇▇▇▇ Acquisition Documents and material related agreements and instruments, and all opinions, certificates and other documents reasonably requested by the Administrative Agent and all required regulatory and third party approvals.
(c) omitted.
(d) The conditions set forth in clauses (b), (c), (e), (f) and, to the extent that receipt of any governmental approval or material third-party consent referred to in clause (g) of the definition of Permitted Acquisition is a condition to closing under the ▇▇▇▇▇▇ Purchase Agreement, (g) of the definition of “Permitted Acquisition” in the Credit Agreement (as in effect immediately prior to the Effective Date) shall have been received satisfied or waived by the Administrative Agent with respect to the ▇▇▇▇▇▇ Acquisition.
(e) There shall be no continuing Default or Event of Default and the representations and warranties of the Loan Parties contained in the Loan Documents, as amended by this Amendment No. 2, shall be true and correct in all material respects as of the Effective Date or such other specific date as of which any such representation or warranty is by its discretion terms made.
(except that f) Since December 31, 2005 and after giving effect to the ▇▇▇▇▇▇ Acquisition and the funding of the Additional Term Loan, no event or condition shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(g) Administrative Agent shall have received the fees described in the New Fee Letter.
(h) Administrative Agent shall have received (a) the results, satisfactory to it, of UCC, judgment and tax lien searches from such jurisdictions as the Administrative Agent may not waive receipt shall have reasonably required with respect to ▇▇▇▇▇▇ and (b) such evidence of clauses insurance with respect to the business and property being acquired in the ▇▇▇▇▇▇ Acquisition together with an endorsement naming the Administrative Agent as loss payee and an additional insured for the benefit of the Administrative Agent and the Lenders in accordance with Section 7.5 of the Credit Agreement as Administrative Agent shall have reasonably requested and in form and substance reasonably satisfactory to the Agent.
(i)) Administrative Agent shall have received a Pro Forma Balance Sheet as of the last fiscal month for which financial statements are available, giving effect to the acquisition of ▇▇▇▇▇▇ and the incurrence of the Additional Term Loan.
(j) Within one hundred twenty (120) days of the Effective Date, (ii)a) Administrative Agent shall receive such control agreements with respect to deposit accounts and securities accounts, (iii)if any, (iv), (x), (xi) and (xii) of this ▇▇▇▇▇▇ as the Administrative Agent shall have requested in accordance with Section 4)7.14 of the Credit Agreement, each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this AmendmentAgent, executed and delivered by a duly authorized officer of (a) the Borrower and or (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel shall cause each of its deposit accounts and securities accounts (to the Borrower extent not subject to a control agreement pursuant to subclause (a) above), if any, to be closed and Guarantors, the funds in each case dated the Effective Date, addressed such account transferred into an Account subject to the Administrative Agent a control agreement in form and the Lenders and reasonably substance satisfactory to the Administrative Agent;.
(ivi) All conditions to the closing of the ▇▇▇▇▇▇ Acquisition shall have been satisfied or, with (unless such waiver would reasonably not be expected to have a materially adverse effect on the Lenders) the consent of the Administrative Agent (not to be unreasonably withheld), waived and concurrently with the effectiveness of this Amendment No. 2, the ▇▇▇▇▇▇ Acquisition shall be consummated in accordance with the ▇▇▇▇▇▇ Acquisition Documents in all material respects and (ii) the equity interests of and the business and assets owned by ▇▇▇▇▇▇ shall be free and clear of all Liens (other than Permitted Liens).
(l) The Administrative Agent shall have received resolutions been provided a first priority perfected Lien (subject to Permitted Liens) in all equity interests of the boards ▇▇▇▇▇▇ and all assets of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date ▇▇▇▇▇▇ in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) requirements of the Borrower Loan Documents, and Holdings, the Borrowers and ▇▇▇▇▇▇ shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated executed such documents and taken such actions as may be required by the “Lender Commitments” section of the Term Sheet provided to the Lenders Administrative Agent in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)therewith.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become be effective as of the date hereof upon the date on which satisfaction of the following conditions (each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each to be in form and substance satisfactory to the applicable recipient:Agent):
(ia) delivery to the Administrative Agent shall have received of original counterpart signature pages to this Amendment, duly executed and delivered by a duly authorized officer of (a) the Borrower Borrowers, the Guarantors and the Majority Banks;
(b) delivery to the Required Lenders (including, in any event, each Lender providing Agent of a portion legal opinion of C▇▇▇▇▇▇▇ Chance R▇▇▇▇▇ & W▇▇▇▇ LLP as to the consummation of the Extended Facilities), together with all schedules Merger and exhibits hereto and acknowledged by the Administrative Agentcontinued enforceability of the Loan Documents as against MIR;
(c) MIR or the other Borrowers or Guarantors shall have executed and delivered to the Agent, as the case may be, (i) an Assumption Agreement substantially in the form of Exhibit A attached hereto; (ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), a Membership Interest Pledge Agreement substantially in the form of Exhibit B attached hereto, duly executed and delivered by evidence of the registration of the pledge created thereby shall have been registered on the books and records of MIR; (iii) a Perfection Certificate of MIR; and (iv) such UCC-1 financing statements and UCC-3 amendments as the Agent shall have requested, each Guarantorto be in form and substance satisfactory to the Agent;
(d) the Borrowers shall have delivered to the Agent, (i) an incumbency certificate, signed by the member or MIR and giving the name and bearing the signature of each individual who shall be authorized to sign this Amendment and the other Loan Documents to which MIR is a party in the name and on behalf of MIR, (ii) certified true and complete copies of all of MIR’s organizational and constituent documents as in effect on the date hereof, (iii) a certified copy of MIR’s certificate of formation, (iv) a certified copy of MIR’s certificate of conversion, (v) board resolutions or other documents evidencing authorization of the Administrative Conversion and the transactions contemplated by this Amendment and (v) evidence that MIR shall have filed applications to do business as a foreign limited liability company in all jurisdictions where such qualification is necessary; and
(e) all proceedings in connection with the transactions contemplated by this Amendment shall be reasonably satisfactory in substance and form to the Agent, and the Agent shall have received all information and such documents as the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and may reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)request.
Appears in 1 contract
Sources: Loan Agreement (Metallurg Inc)
Conditions to Effectiveness. This Amendment Agreement shall become be effective upon as of July 30, 2008, subject to the following:
(a) the Administrative Agent shall have received counterparts of this Agreement executed by the Required Lenders;
(b) the Administrative Agent shall have received counterparts of this Agreement executed by the Borrower and acknowledged by each Guarantor;
(c) the representations and warranties set forth in Section 4 of this Agreement shall be true and correct;
(d) the Administrative Agent shall have received from the Borrower for the benefit of each Lender executing and delivering this Agreement to the Administrative Agent or its counsel by the date on which each of and time communicated to the following shall have been received or waived Lenders by the Administrative Agent an amendment fee in its discretion (except that immediately available funds in an amount equal to the Administrative Agent may not waive receipt product of clauses (i), ) 0.15% and (ii)) the amount of each Lender’s Commitment, as reduced by this Agreement;
(iii), (iv), (x), (xie) the Canadian Facility and (xii) of this Section 4), each the Calyon Credit Agreement shall have been amended or otherwise modified in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(f) payment of (i) all reasonable out-of-pocket expenses and fees of counsel to the Administrative Agent incurred in connection with the negotiation, execution and delivery of this Agreement to the extent invoiced prior to the date hereof and (ii) all other fees agreed to be paid by the Borrower;
(g) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in opinion of the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and GuarantorsBorrower’s counsel, in each case dated the Effective Date, addressed to the Administrative Agent form and the Lenders and reasonably substance satisfactory to the Administrative Agent, with respect to matters set forth in Sections 4(c), (d) and (e) of this Agreement and with respect to such other matters as requested by the Administrative Agent or its counsel;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixh) the Administrative Agent shall have received a Borrowing Notice in respect Guaranty executed by Spartech Polycom (Texas), Inc., X-Core, LLC and Alshin Tire Corporation, together with such related documents as required by Section 6.13 of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiii) the Administrative Agent and the Lenders shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan in form and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel substance satisfactory to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (Lenders, such other documents and certificates as the “Engagement Letter”)Lenders shall require.
Appears in 1 contract
Sources: Credit Agreement (Spartech Corp)
Conditions to Effectiveness. This Amendment shall become effective upon on the date on which Third Amendment Effective Date when, and only when, each of the following applicable conditions set forth below has been satisfied (or waived by Administrative Agent) in accordance with the terms herein:
a. this Amendment shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent;
b. Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions (i) an executed copy of the boards MIPA and the other material MIPA Documents, (ii) a confirmation from Borrower that (A) the closing of directors the Acquisition was consummated prior to, or other appropriate governing body substantially simultaneously with, the closing of this Amendment and (B) the filings, permits, authorizations, consents and approvals contemplated under the MIPA were obtained (or waived) prior to, or substantially simultaneously with, the closing of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting and (iii) evidence satisfactory to Administrative Agent and the Loan Documents to Lenders that, at the closing of the Acquisition, all Liens (other than Permitted Liens) on the assets of Company shall be executed by such Person, terminated and authorizing released substantially simultaneously with the execution and delivery thereofThird Amendment Effective Date;
(v) the c. Administrative Agent and the Lenders shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf an executed copy of the Borrower Amended and each Guarantor, certified by the secretary or assistant secretary of such Borrower or GuarantorRestated Supply Agreement;
(vi) the d. [reserved];
e. Administrative Agent shall have received any changes to and the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent Lenders shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due status, existence and good standing or the equivalent in the jurisdiction of incorporation or formation of the applicable Loan Party, dated a recent date, for each Loan Party from each of the jurisdictions where such Loan Party is organized or formed, as applicable;
f. the representations and warranties of Borrower and the other Loan Parties contained in Section 5 below and in Article III of the Existing Credit Agreement and any other Financing Documents shall be true and correct in all material respects on and as of the Third Amendment Effective Date (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Third Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendmentearlier date);
(x) the g. Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement paid all fees and expenses due and payable to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders pursuant to the Financing Documents and shall reimburse Administrative Agent and the Lenders for all reasonable and documented out- of-pocket costs and expenses (or their affiliates) in connection with this Amendment, have been paid in full, including the reasonable fees and expenses of counsel to the Administrative Agent) incurred by Administrative Agent to and the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred Lenders in connection with the transactionevaluation, negotiation, preparation, execution, delivery and performance of this Amendment;
h. all proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be reasonably satisfactory to Administrative Agent and its legal counsel; provided that and
i. no such estimate Default or Event of Default shall thereafter preclude the final settling of accounts as to such fees have occurred and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)be continuing.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become be effective upon the date on which satisfaction of each of the following shall have been received or waived by conditions:
(a) the Administrative Agent in (or its discretion counsel) shall have received from each of the Administrative Agent, the Borrower, the Guarantors, and the Lenders party hereto, either (except that a) a counterpart of this Amendment signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may not waive receipt include telecopy transmission of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) a signed signature page of this Section 4), each in form and substance satisfactory to the applicable recipient:Amendment) that such party has signed a counterpart of this Amendment;
(ib) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized certificate of the chief financial officer or another Responsible Officer of (a) the Borrower and (bin accordance with the requirements set forth in Section 2.14(d)(i)(D) the Required Lenders (including, in any event, each Lender providing a portion of the Extended FacilitiesCredit Agreement, as amended by and after giving effect to this Amendment (including the waiver in Section 3 hereof), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(iic) the Administrative Agent shall have received an acknowledgment opinion of counsel to the Loan Parties, in a form and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the substance reasonably satisfactory to Administrative Agent shall have received the favorable written opinion or opinions with respect and covering such matters relating to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Datehereby as Administrative Agent may reasonably request, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative AgentLenders;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixd) the Administrative Agent shall have received a Borrowing Notice fully-executed and assembled copy of a Pledge Supplement (including all schedules, exhibits and annexes thereto) with respect to the equity interests in respect of the Extended Term Loans HMS Funding and MSIF Funding LLC, in each case requested form and substance reasonably satisfactory to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment)Administrative Agent;
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiie) the Administrative Agent shall have received evidence that a fully-executed and assembled copy of a Joinder Agreement (including all fees payable by the Borrower on or before the Effective Date schedules, exhibits and annexes thereto) with respect to the joinder of HMS Funding as a “Guarantor,” a “Grantor,” and a “Pledgor” to the Credit Agreement and the other Loan Documents, as applicable;
(f) the Administrative Agent shall have received all documents which the Administrative Agent or any Lender may reasonably request relating to the existence of each Loan Party, the authority for and the validity of this Amendment and any other Loan Documents entered into in connection herewith, and any other matters relevant hereto or thereto, all in form and substance satisfactory to Administrative Agent, JPMorgan including without limitation a certificate of incumbency of each Loan Party, signed by the Secretary, an Assistant Secretary, a member, manager, partner, trustee or other authorized representative of the respective Loan Party, certifying as to the names, true signatures and incumbency of the Lenders officer or officers of the respective Loan Party, authorized to execute and deliver the Loan Documents, and certified copies of the following items: (i) such Loan Party’s Organizational Documents; (ii) such Loan Party’s Operating Documents; (iii) a certificate of the Secretary of State of such Loan Party’s state of organization as to the good standing or their affiliatesexistence of such Loan Party, and (iv) the Organizational Action, if any, taken by the board of directors of such Loan Party or the members, managers, trustees, partners or other applicable Persons authorizing such Loan Party’s execution, delivery and performance of this Amendment and any other Loan Documents entered into in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transactionherewith; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).140760.01015/126392406v.5
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective upon The effectiveness of this Agreement is subject to the date on which each satisfaction of the following conditions precedent, unless specifically waived in writing by Agent:
(a) Agent shall have been received or waived by all of the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4)following, each in form and substance satisfactory to Agent (each of which shall be deemed to be a “Loan Document” for purposes of the applicable recipient:Financing Agreement):
(i) the Administrative Agent shall have received this AmendmentThis Agreement, duly executed by Companies, Parent, and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentLenders;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)Stock Pledge Agreement covering all shares of capital stock in Cardlock now or hereafter owned by Parent, duly executed by Parent, substantially in the form of Exhibit B Annex I attached hereto; together with the original stock certificates evidencing such capital stock; together with an undated stock power for each such certificate, duly executed and delivered in blank by each GuarantorParent;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect Guaranty as to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby all indebtedness of (A) in-house legal counsel Companies to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and Lenders, duly executed by Parent, substantially in the Lenders and reasonably satisfactory to the Administrative Agentform of Annex II attached hereto;
(iv) the Administrative Agent shall have received resolutions Subordination Agreement subordinating payment of all indebtedness of Companies to Parent to prior payment in full of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective DateObligations, approving this Amendment, adopting the Loan Documents to be duly executed by such PersonParent, and authorizing substantially in the execution and delivery thereof;form of Annex III attached hereto; and
(v) the Administrative Such additional documents, instruments and information as Agent may request.
(b) Agent shall also have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf all of the Borrower following additional information and documentation, each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;in form and substance satisfactory to Agent:
(vii) Evidence that the Administrative Agent shall have received any changes to Cardlock Transaction has been consummated consistent with the Organizational Documents description of the Borrower and each Guarantor since Cardlock Transaction contained in the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect Recitals to this Amendment);
(x) the Borrower shall have purchasedAgreement, defeasedtogether with copies of all documents, discharged agreements, materials and certificates executed or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders issued in connection with this Amendmentthe Cardlock Transaction, using cash on hand (not resulting from borrowings under including, without limitation, the Credit Cardlock Stock Purchase Agreement) or proceeds from the Year 2010 Senior Notes, including all exhibits and schedules thereto; and
(xiiii) If needed, evidence that Parent and Companies have obtained the Administrative Agent consent of Sterling Bank to the Cardlock Transaction;
(c) The representations and warranties contained herein and in the Financing Agreement and the other Loan Documents, as each is amended hereby, shall be true and correct as of the date hereof, as if made on the date hereof;
(d) No Default or Event of Default shall have received evidence that all fees payable occurred and be continuing, unless such Event of Default has been otherwise specifically waived in writing by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan Agent and the Lenders Required Lenders; and
(or their affiliatese) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred All corporate proceedings taken in connection with the transaction; provided that no such estimate transactions contemplated by this Agreement and all documents, instruments and other legal matters incident thereto shall thereafter preclude the final settling of accounts as be satisfactory to such fees Agent and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)its legal counsel.
Appears in 1 contract
Conditions to Effectiveness. This Extension Agreement and Amendment shall become be effective upon the date on which each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) provided that the Administrative Agent shall have received specimen signatures received
(a) Counterparts of officers or other appropriate representatives executing the Loan Documents on behalf of this Extension Agreement and Amendment executed by the Borrower and Required Lenders (which may be by telecopy or other electronic transmission),
(b) A certificate of a Responsible Officer of the Borrower,
(i) certifying as to the incumbency and specimen signature of the Responsible Officer who executes this Extension Agreement and Amendment,
(ii) certifying (1) that attached to such certificate is a are true and complete copy of each Guarantorof the certificate of limited partnership and limited partnership agreement of Borrower, certified neither of which have been further amended or modified, and each of which remains in full force and effect, and (2) that the certificate of formation and limited liability company agreement of the Delegate, copies of which were attached as Annex B to the Corporate Secretary’s Certificate (the “Prior Certificate”) dated September 26, 2011 delivered by the secretary Delegate in connection with the closing of the Credit Agreement, have not been amended or assistant secretary of such Borrower or Guarantor;modified and remain in full force and effect,
(viiii) certifying that attached to such certificate is a true and complete copy of the Administrative Agent shall resolutions adopted by the board of directors of the Delegate that authorize the extension of the Scheduled Maturity Date as herein set forth and such resolutions have received any changes not been amended, modified, revoked or rescinded and remain in full force and effect,
(iv) certifying that the Delegation of Control Agreement among the Borrower, Enbridge Management, and Enbridge Energy Company, Inc. dated as of October 17, 2002 and the amendment thereto dated February 21, 2005 attached as Annex E to the Organizational Documents Prior Certificate, have not been amended or modified and remain in full force and effect, and
(c) Fees, for the account of each Extending Lender, in an amount agreed to be paid by the Borrower and each Guarantor since pursuant to the First Amendment Effective Date or since last provided letter addressed to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable executed by the Borrower on or before dated August 20, 2014 requesting the Effective Date to the Administrative Agent, JPMorgan Extension and the Lenders (or their affiliates) amendment set forth in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Section 3 above.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective upon on the date on which each of the following conditions is satisfied (such date, the “Amendment No. 2 Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall have been received be originals or waived facsimiles or electronic copies (followed promptly by originals) unless otherwise specified, and each executed by a Responsible Officer of the Borrower:
(1) counterparts of this Amendment executed by the Borrower and Consents executed by the Required Lenders; and
(2) a Note executed by the Borrower in favor of each Lender requesting a Note at least two (2) Business Days prior to the Amendment No. 2 Effective Date, if any.
(b) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified;
(1) an opinion of White & Case LLP, counsel to the Borrower and the Guarantors, dated the Amendment No. 2 Effective Date and addressed to the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i)and each Lender, (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance reasonably satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii2) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form opinion of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ Ronon ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇, LLP, special Pennsylvania counsel to the Borrower and the Guarantors, in each case dated the Amendment No. 2 Effective Date, Date and addressed to the Administrative Agent and the Lenders and each Lender, in form reasonably satisfactory to the Administrative Agent;
(iv3) a certificate of the Secretary, Assistant Secretary or other appropriate officer of the Borrower certifying as to customary matters and attaching: (1) a certified copy of the certificate of incorporation of the Borrower; (2) its by-laws; (3) its board of directors’ resolutions authorizing the execution, delivery and performance of the Amendment and other relevant Loan Documents; (4) a certificate of good standing for the Borrower from the Delaware Secretary of State; and (5) incumbency certificate, which shall identify by name and title and bear the signature of the officers of the Borrower authorized to sign the relevant Loan Documents and to make borrowings hereunder, as applicable, upon which certificate the Administrative Agent and the Lenders shall have received resolutions be entitled to rely until informed of any change in writing by the Borrower
(4) a certificate of the boards of directors Secretary, Assistant Secretary or other appropriate governing body officer or member of each Significant Subsidiary certifying as to customary matters and attaching, in respect of such Significant Subsidiary: (or 1) certified copies of the appropriate committee thereofarticles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents, (2) its by-laws, operating agreement or other similar governing document, (3) the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Amendment and the relevant Loan Documents, (4) certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of such Significant Subsidiary and (5) the name, title and specimen signature of each officer or other person authorized to sign the Loan Documents to which it is a party
(5) a certificate, signed by the Chief Financial Officer, stating that, to the best of his knowledge after due inquiry, on the date hereof after giving effect to the Amendment, (i) no Default or Unmatured Default has occurred and is continuing; (ii) the representations and warranties of the Borrower and each Guarantor certified by its secretary or assistant secretary as set forth in the Loan Documents are true and correct; and (iii) since the date of the financial statements of the Borrower described in Section 5.4(i) of the Credit Agreement, there has been no change which has had or could reasonably be expected to have a Material Adverse Effect.
(c) The aggregate principal amount of the Exchanged Term Loans plus the aggregate principal amount of the Additional Tranche A Term Loan Commitments shall equal the aggregate principal amount of the outstanding Term Loans plus $17,500,000 immediately prior to the Amendment No. 2 Effective Date.
(d) The Borrower shall have paid to the Administrative Agent, for the ratable account of the Term Lenders immediately prior to the Amendment No. 2 Effective Date, approving this Amendmentall accrued and unpaid interest on the Term Loans to, adopting but not including, the Loan Documents Amendment No. 2 Effective Date on the Amendment No. 2 Effective Date.
(e) The payment of all fees, expenses and other amounts due and payable on or prior to the Amendment No. 2 Effective Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be executed reimbursed or paid by such Personthe Borrower hereunder, under any other Loan Document and under any agreement with the Administrative Agent or any Amendment No. 2 Arranger, and authorizing in respect of which the execution and delivery thereof;Borrower has received an invoice in reasonable detail at least two Business Days prior to the Amendment No. 2 Effective Date .
(vf) To the extent requested by an Additional Tranche A Term Lender in writing not less than three (3) Business Days prior to the Amendment No. 2 Effective Date, the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantorreceived, certified by the secretary or assistant secretary of such Borrower or Guarantor;
not less than three (vi3) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent Business Days prior to the Amendment No. 2 Effective Date, certified as true all documentation and correct other information with respect to the Borrower required by its secretary or assistant secretary;regulatory authorities under applicable “know- your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(viig) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the The Administrative Agent shall have received a Borrowing Notice fee in respect cash for the account of each Tranche A Lender equal to (i) 10 basis points of the Extended principal amount of such Lender’s Tranche A Term Loans in each case requested to be made on the Amendment No. 2 Effective Date in accordance with that represent a rollover of such Tranche A Lender’s Term Loans outstanding prior to the Credit Agreement Amendment No. 2 Effective Date and (after giving effect to this Amendment);
(xii) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% 20 basis points of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the such Tranche A Lender’s Tranche A Term Loans under on the Credit Agreement Amendment No. 2 Effective Date that do not represent a rollover of Term Loans outstanding prior to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).Amendment No. 2
Appears in 1 contract
Sources: Credit Agreement (Omnicare Inc)
Conditions to Effectiveness. (a) This Amendment Agreement shall become effective upon as of the date (the “Amendment Effective Date”) on which each of the following conditions shall have been received or waived by satisfied (i) the Existing Administrative Agent (or its counsel) shall have received counterparts of this Agreement that, when taken together, bear the signatures of (x) the Borrower and (y) Wilmington Trust, National Association, acting in its discretion capacity as (except that I) the Existing Administrative Agent may not waive receipt under the Existing Credit Agreement and on behalf, and with the authority of clauses each of the Lenders thereunder to consent to the amendment and restatement of the Existing Credit Agreement in the form attached hereto as Annex A and (i)II) the administrative agent under the Restated Credit Agreement (the “New Administrative Agent”) and on behalf, and with the authority of each of the lenders under the Restated Credit Agreement (ii)the “New Lenders”) to make the representations, (iii), (iv), (x), (xiconsent to the terms and agreements set forth herein and to release their signature pages to the Restated Credit Agreement on the terms set forth herein) and (xiiii) each of this the conditions set forth in Section 4), each in form and substance satisfactory 4.01 of the Restated Credit Agreement shall have been satisfied or waived.
(b) Notwithstanding anything to the applicable recipientcontrary contained herein, in the Existing Credit Agreement or in the Restated Credit Agreement, Wilmington Trust, National Association, acting in its capacity as the New Administrative Agent and on behalf of and with the consent of each of the New Lenders, hereby confirms and agrees as follows:
(i) the Administrative Agent shall have it has received this Amendment, executed and delivered by a duly authorized officer undated copies of (aeach of the documents referred to in Sections 4.01(a) the Borrower and (bd) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules Restated Credit Agreement and exhibits hereto each such document being satisfactory in form and acknowledged by substance to the Administrative AgentNew Agent and each New Lender;
(ii) each of the Administrative Agent shall have received an acknowledgment other conditions set forth in Section 4.01 of the Restated Credit Agreement has been satisfied on and consent as of the date hereof (“Acknowledgment and Consent”other than the conditions set forth in Sections 4.01(b), substantially in the form of Exhibit B hereto(f), duly executed (g), (h) and delivered by each Guarantor(i) thereof);
(iii) upon delivery by the Borrower of a notice in the form attached hereto as Annex B confirming the satisfaction of each of the conditions set forth in Sections 4.01(f), (g), (h) and (i) of the Restated Credit Agreement, each document referenced in Sections 4.01(a) and (d) of the Restated Credit Agreement shall be dated by the New Agent the date of such notice and each executed signature page thereto shall be automatically deemed to be released (and the New Administrative Agent shall have received represents and warrants that it has the favorable written opinion or opinions with respect consent of each New Lender to release such signature pages), the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the “Effective Date, addressed ” as defined in the Restated Credit Agreement shall be deemed to have occurred and each of the Administrative Agent New Lenders shall be obligated to fund its portion of the New Loans on and as of such date in the Lenders amount set forth in the initial borrowing notice (net of any fees due and reasonably satisfactory to payable under the Administrative Agent;Fee Letter and in accordance with Section 4.01(b) of the Restated Credit Agreement); and
(iv) there shall be no other conditions to the occurrence of the Amendment Effective Date, the occurrence of the “Effective Date” under the Restated Credit Agreement and the obligations of the New Lenders to make the Loans under and as defined in the Restated Credit Agreement on such Effective Date (as defined therein). The New Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of notify the Borrower and each Guarantor certified by its secretary or assistant secretary as the New Lenders of the Amendment Effective Date, approving this Amendment, adopting the Loan Documents to and such notice shall be executed by such Person, conclusive and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings binding under the Restated Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Sources: Second Lien Credit Agreement (Sequential Brands Group, Inc.)
Conditions to Effectiveness. This Amendment shall become be effective upon on the date on (the “Amendment Effective Date”) upon which each of the following shall conditions precedent have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientsatisfied:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the The Administrative Agent shall have received the favorable written opinion following, each of which shall be originals, facsimiles or opinions with respect to in portable document format (.pdf), and unless otherwise specified, each dated as of the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed and each in form and substance reasonably satisfactory to the Administrative Agent and the Lenders Required Lenders:
(i) counterparts of this Amendment executed by the Borrower, the Administrative Agent and each Lender and a Note executed by the Borrower in favor of each Lender requesting a Note
(ii) a certificate of the chief financial officer of the Borrower attaching the following and certifying that they have been prepared in good faith based upon reasonable assumptions: consolidated balance sheet of Borrower and its Subsidiaries and a consolidated statement of income of the Borrower for the year ended December 31, 2014 and nine month period ended September 30, 2015;
(iii) a solvency certificate from the chief financial officer of the Borrower;
(iv) a certificate executed by a Responsible Officer of the Borrower certifying that:
(A) after giving effect to this Amendment, there is no conflict with, or default under, any material agreement of the Borrower or any of its Subsidiaries (including any such agreements entered into in respect of Indebtedness), except for such conflicts or defaults as would not reasonably be expected to have a Material Adverse Effect;
(B) all representations and warranties set forth in Section 5 of this Amendment are true and correct as of the Amendment Effective Date prior to and after giving effect to this Amendment; and
(A) from the Secretary or an assistant secretary of the Borrower, certificates of resolutions, incumbency and specimen signatures evidencing the identity, authority and capacity of each of the Borrower’s officers who are authorized to act in connection with this Amendment and the other documents delivered pursuant to this Section 6 and/or authorized to deliver requests for Loans pursuant to the Credit Agreement on and after the Amendment Effective Date, (B) documents and certifications evidencing that the Borrower is validly existing and in good standing in the State of Utah, and (C) copies of organizational documents of the Borrower certified by the Secretary or an assistant secretary of the Borrower or a certification that the organizational documents previously delivered to the Administrative Agent in connection with the Credit Agreement are still in full force and effect and have not been amended, modified or waived, in each case as the Administrative Agent may reasonably require;
(vi) favorable legal opinions (including an opinion regarding the enforceability of the Credit Agreement as amended by this Amendment) covering such matters as the Administrative Agent may reasonably request; and
(vii) the Borrower shall have entered into the 364-Day Credit Facility, in form and substance reasonably satisfactory to the Administrative Agent;
, effective contemporaneous with the effectiveness hereof, providing for, among other things, that each Lender’s “Applicable Percentage” (ivas defined therein) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary thereunder is equal to such Lender’s Applicable Percentage hereunder as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Personeffectiveness hereof, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);copy thereof; and
(xb) the Borrower shall have purchasedpaid, defeasedwithout duplication, discharged or redeemed at least 80% (i) to each of ▇▇▇▇▇ Fargo Securities, LLC and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as a Joint Lead Arranger (each an “Arranger”), for its own account, the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand fees and expenses then due and payable to such Arranger, (not resulting from borrowings under the Credit Agreementii) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all for the account of the applicable Lenders, any fees payable required to be paid to Lenders on or prior to the Amendment Effective Date; and (iii) other fees and expenses required to be reimbursed or paid by the Borrower on or before the Effective Date pursuant to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in fullLoan Documents, including the reasonable fees and expenses of counsel to the Administrative Agent Agent, to the extent invoiced at least one (1) Business Day to the Borrower prior to the Amendment Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 6, each Lender shall be deemed to be satisfied with each document delivered to it or on other matter required hereunder to be satisfactory to Lenders unless the Administrative Agent shall have received notice from such Lender prior to the proposed Amendment Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)specifying otherwise.
Appears in 1 contract
Sources: Multi Year Revolving Credit Agreement (Questar Corp)
Conditions to Effectiveness. This Amendment Joinder Agreement shall become effective upon on May 25, 2011 (the date on which each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi“Term B-2 Joinder Effective Date”) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientwhen:
(i) the Administrative Agent this Joinder Agreement shall have received this Amendment, been executed and delivered by a duly authorized officer of (a) the Borrower and (b) Borrower, the Required Lenders (including, in any eventLoan Parties, each Term B-2 Loan Lender providing a portion of the Extended Facilities), together with all schedules and exhibits party hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received a certificate of each Loan Party dated as of the Term B-2 Joinder Effective Date signed by a Responsible Officer of such Loan Party (i) (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the Term B-2 Loans, (B) certifying that the certificate or articles of incorporation or organization (certified by the Secretary of State or like authority of the state of its incorporation or organization) and by-laws or operating (or limited liability company) agreement of such Loan Party either (x) have not been amended since the Restatement Date or (y) are attached as an acknowledgment exhibit to such certificate, and consent (“Acknowledgment C) certifying as to the incumbency and Consent”specimen signature of each officer executing the Joinder Agreement and any related documents on behalf of such Loan Party and (ii) in the case of the Borrower, certifying as to the matters set forth in clauses (v), substantially (vi) and (viii) below (except that the representations and warranties contained in subsections (a) and (b) of Section 5.06 of the form Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Exhibit B hereto, duly executed and delivered by each GuarantorSection 6.01 of the Credit Agreement);
(iii) all fees and out-of-pocket expenses required to be paid or reimbursed by the Borrower as separately agreed by the Borrower and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Lending Partners LLC, ▇▇▇▇▇ Fargo Securities, LLC, Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc. (collectively, the “Bookrunners”), including fees and out-of-pocket expenses of the Bookrunners and all invoiced fees and expenses of counsel to the Administrative Agent and the Bookrunners, shall have been paid or reimbursed, on or prior to the date hereof;
(iv) the Term B-2 Loan Lenders and the Administrative Agent shall have received the favorable written (a) an opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Borrower in form and Guarantors, in each case dated the Effective Date, addressed substance reasonably satisfactory to the Administrative Agent and (b) Hunton & ▇▇▇▇▇▇▇▇ LLP, special Virginia counsel to the Lenders Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(ivv) both immediately before and after giving effect to the Administrative Agent shall have received resolutions Term B-2 Loans, the representations and warranties of the boards of directors or other appropriate governing body (or Loan Parties contained in Article V of the appropriate committee thereof) of the Borrower Credit Agreement and in each Guarantor certified by its secretary or assistant secretary other Loan Document shall be true and correct in all material respects on and as of the Term B-2 Joinder Effective DateDate as though made on such date (except to the extent that such representations and warranties specifically refer to an earlier date, approving this Amendment, adopting the Loan Documents to in which case they shall be executed by such Person, true and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary correct in all material respects as of such Borrower or Guarantorearlier date);
(vi) the Administrative Agent representations and warranties in Section 10 of this Joinder Agreement shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as be true and correct by its secretary or assistant secretaryin all material respects as of the date hereof;
(vii) the Administrative Agent shall have received any changes to the Operating Documents a notice of such Term B-2 Loan as required by Section 2.02 of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;Credit Agreement; and
(viii) the Administrative Agent no Default or Event of Default shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made exist on the Effective Date in accordance with the Credit Agreement (date hereof before or after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)B-2 Loans.
Appears in 1 contract
Conditions to Effectiveness. This The effectiveness of the consents set forth in Section 2 and the amendments set forth under Section 3 of this Consent and Amendment shall become effective upon is subject to the satisfaction in full (or waiver by the Required Lenders) of each of the conditions precedent set forth in this Section 4 (the date on upon which each of the following shall such conditions precedent in this Section 4 have been received satisfied or waived by waived, the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) “Consent and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:Amendment Effective Date”):
(i) the Administrative Agent shall have received counterparts of this AmendmentConsent and Amendment that, executed when taken together, bear the signatures of the Borrower, the Guarantors, the Parent and delivered the Required Lenders;
(ii) all costs and expenses due and owing pursuant to Section 13 hereof to the Administrative Agent by a duly authorized officer of (a) the Borrower shall have been paid in full and (b) the Required Lenders (including, in Borrower shall have paid any event, each Lender providing a portion other fees or invoiced expenses of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(iiiii) the Administrative Senior Facility Agent shall have received an acknowledgment executed a consent and consent (“Acknowledgment amendment under the Senior Facility Credit Agreement granting substantively identical consents and Consent”), substantially amendments to those set forth in the form of Exhibit B hereto, duly executed this Consent and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect Amendment to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel extent applicable to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and GuarantorsSenior Facility Credit Agreement, in each case dated the Effective Date, addressed to the Administrative Agent form and the Lenders and reasonably substance satisfactory to the Administrative Agent;
(iv) the Administrative Agent Proposed Eros Transaction shall have received resolutions been consummated, or shall be consummated, substantially concurrently with the Consent and Amendment Effective Date, in accordance with the terms set forth in that certain Agreement and Plan of Merger, dated as of even date herewith, by and among Eros Plc, England Holdings 2, Inc., England Merger Corp., and Parent (the “Merger Agreement”), a copy of which has been previously provided to the Administrative Agent, without giving effect to any modifications, amendments, consents or waivers thereto that in the aggregate are material and adverse to the Lenders without the prior consent of the boards of directors or other appropriate governing body (or Required Lenders; provided that the final terms of the appropriate committee thereofProposed Eros Transaction include: (A) Parent being the indirect wholly-owned subsidiary of Eros Plc, and Parent existing as an indirect “sister” subsidiary of Eros International Media Limited; (B) Parent surviving the Merger and continuing to have no business activities other than as permitted pursuant to Section 6.30 of the Credit Agreement and continuing to directly hold 100% of the Equity Interests in the Borrower; and (C) each of the Borrower and each Guarantor certified by its secretary the other Credit Parties surviving the Merger; and (D) any changes to the certificate of incorporation (or assistant secretary as equivalent) or bylaws (or equivalent) of Parent or any Credit Party shall be satisfactory to the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereofAdministrative Agent;
(v) the Administrative Agent not less than $110,000,000 of new equity investment shall have received specimen signatures been contributed to Parent or Eros Plc, of officers or other appropriate representatives executing which not less than $25,000,000 (which amount is in excess of any amounts being used to repay the Loan Documents on behalf outstanding principal and accrued interest owed under the Credit Agreement substantially simultaneously with the consummation of the Proposed Eros Transaction) shall have been contributed to Borrower and each Guarantor, certified by not less than $50,000,000 shall remain at Eros Plc pro forma after consummation of the secretary or assistant secretary of such Borrower or GuarantorProposed Eros Transaction;
(vi) the Administrative Agent Proposed Prepayment shall have received any changes to occurred, or shall occur, substantially concurrently with the Organizational Documents of the Borrower Consent and each Guarantor since the First Amendment Effective Date or since last provided to and the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretaryProposed Eros Transaction;
(vii) the Administrative Agent shall have received any changes to representations and warranties contained in Section 5 hereof, in the Operating Credit Agreement and in the other Fundamental Documents are true and correct in all material respects on and as of the Borrower date of the Consent and each Guarantor since the First Amendment Effective Date or since last provided (except to the Administrative Agent prior extent that such representations and warranties expressly relate to the Effective Datean earlier date, certified in which case such representations and warranties were true and correct in all material respects on and as of such earlier date and/or (b) cannot be made as of the Consent and Amendment Effective Date as true and correct by its secretary or assistant secretarysolely due to the existence of a Default that is not material);
(viii) upon the Administrative Agent reasonable request of any Lender, the Borrower shall have received certificates issued as of a recent date by provided to such Lender, and such Lender shall be reasonably satisfied with, the Secretaries of State of documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the respective jurisdictions of formation of the Borrower and PATRIOT Act, in each Guarantor as case at least five (5) days prior to the due existence Consent and good standing of such PersonAmendment Effective Date;
(ix) at least three (3) days prior to the Consent and Amendment Effective Date, to the extent that the Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, Borrower shall deliver, to each Lender that so requests the same at least seven (7) days prior to the Consent and Amendment Effective Date, a Beneficial Ownership Certification; and
(x) the Administrative Agent shall have received a Borrowing Notice in respect certificate of the Extended Term Loans Secretary, Assistant Secretary or other appropriate officer (or member or manager, as the case may be, in each the case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendmentof limited liability companies);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date acceptable to the Administrative Agent, JPMorgan of the Parent and the Lenders (or their affiliates) Borrower, attesting that the conditions precedent set forth in connection with this Amendment, Section 4 have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)satisfied.
Appears in 1 contract
Conditions to Effectiveness. This Third Amendment shall become effective upon on December 17, 2008 (the date on which “Third Amendment Effective Date”), if each of the following conditions precedent shall have been received satisfied on or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory prior to the applicable recipientsuch day:
(ia) the The Administrative Agent shall have received received, with a copy for each Funding Agent, this Amendment, Third Amendment duly executed and delivered by a duly authorized officer officers of (a) the Borrower Issuer, the Administrator and the Indenture Trustee;
(b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the The Administrative Agent shall have received an acknowledgment received, with a copy for each Funding Agent, each of the Second Amendment to the SUBI Servicing Supplement, the First Amendment to the Loan Agreement, the Second Amended and consent (“Acknowledgment Restated Fleet Receivable SUBI Supplement and Consent”), substantially in the form of Exhibit B heretoAmended and Restated Base Indenture, duly executed and delivered by each Guarantorduly authorized officers of the parties thereto;
(iiic) The representations and warranties of the Issuer and VMS contained in the Transaction Documents to which each is a party shall be true and correct in all material respects as of the Third Amendment Effective Date as if made as of the Third Amendment Effective Date;
(d) The Indenture Trustee and the Administrative Agent shall have received the favorable written opinion or opinions with respect Consent of Purchaser Groups in the form of Exhibit E to this Third Amendment, duly executed by the Amendment CP Conduit Purchasers, the APA Banks and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(ive) The Administrative Agent shall have received, with a 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 2006-1 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 2006-1 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 case, in form and substance acceptable to the addressees thereof and their respective counsel; and
(f) The Administrative Agent shall have received resolutions of letters signed by ▇▇▇▇▇’▇ and Standard & Poor’s, confirming that the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Series 2006-1 Investor Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in fullpublicly rated “AA-” and “Aa2”, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)respectively.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become be effective upon subject to the date on which each satisfaction of the following shall have been received or waived by conditions, each to the satisfaction of the Administrative Agent in its sole discretion (except that the Administrative Agent may not waive receipt of clauses (i)and, (ii)as to any agreement, (iii), (iv), (x), (xi) and (xii) of this Section 4)document or instrument specified below, each in form and substance satisfactory to the Administrative Agent in its sole discretion:
(a) the Administrative Agent shall have received an executed counterpart of this Amendment;
(b) the Administrative Agent shall have received counterparts of the Fee Letter (whether by facsimile or otherwise) executed by each of the respective parties thereto along with confirmation of receipt of all fees owing under the Fee Letter;
(c) the Sellers shall have either, in the discretion of the Seller Representative, (i) deposited or (ii) authorized the Administrative Agent to withhold and deposit, and the Administrative Agent shall have so withheld and deposited, from the initial purchase of Receivables to occur on or after the date hereof, if any, in each case, in an amount equal to 1.25% of the Aggregate Discretionary Amounts (as defined in the Receivables Purchase Agreement as amended hereby) into the Refundable Discount Advance Account to serve as additional Refundable Discount Advance (such amount, the “Sixth Amendment Discretionary Reserve”);
(d) the Administrative Agent shall have received either (i) certified copies of resolutions of CACI and each Existing Seller authorizing this Amendment and the Fee Letter and authorizing a person or persons to sign those documents including any subsequent notices and acknowledgements to be executed or delivered pursuant to this Amendment, the Fee Letter, the other Purchase Documents and any other documents to be executed or delivered by CACI and each Existing Seller pursuant hereto or thereto or (ii) certifications from each of CACI and each Existing Seller that the respective resolutions previously delivered by such Person to the Administrative Agent in connection with the Receivables Purchase Agreement are still in full force and effect;
(e) the Administrative Agent shall have received either (i) an officer incumbency and specimen signature certificate for CACI and each Seller or (ii) certifications from each of CACI and each Seller that the respective incumbency and specimen signature certificate previously delivered by such Person to the Administrative Agent in connection with the Receivables Purchase Agreement is still in full force and effect; and
(f) the Administrative Agent shall have received either (i) organizational documents of CACI and each Seller certified by the applicable recipient:governmental authority (as applicable), and evidence of good standing (as applicable) or (ii) certifications from each of CACI and each Seller that (x) the respective organizational documents previously delivered by such Person to the Administrative Agent in connection with the Receivables Purchase Agreement have not been amended since such date and (y) such Person is in good standing in its respective jurisdiction of organization;
(g) the Administrative Agent shall have received (i) organizational documents of the New Seller certified by the applicable governmental authority (as applicable), and evidence of good standing (as applicable), (ii) an officer incumbency and specimen signature certificate for the New Seller, and (iii) certified copies of resolutions of the New Seller authorizing this Amendment and the other Purchase Documents and authorizing a person or persons to sign those documents including any subsequent notices and acknowledgements to be executed or delivered pursuant to this Amendment, the other Purchase Documents and any other documents to be executed or delivered by the New Seller pursuant hereto or thereto;
(h) the Administrative Agent shall have received proof of payment of all fees due and payable to the Purchaser on the date hereof pursuant to the Fee Letter and, to the extent invoiced at least three (3) Business Days’ prior to the Sixth Amendment Date (as defined in the Receivables Purchase Agreement) all reasonable and documented attorneys’ fees and disbursements incurred by the Purchaser to the extent required to be reimbursed pursuant to the Receivables Purchase Agreement; and
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer acknowledgment copies (or evidence of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably filing satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of proper financing statement amendments (Form UCC-3) necessary to evidence the Borrower release of all security interests, ownership and other rights of JPMorgan Chase Bank, N.A previously granted by each Guarantor certified by Seller in the Purchased Receivables (it being agreed that a written confirmation from JPMorgan Chase Bank, N.A. or its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by counsel that such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, UCC-3s have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate submitted for filing shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”satisfy this clause).
Appears in 1 contract
Sources: Master Accounts Receivable Purchase Agreement (Caci International Inc /De/)
Conditions to Effectiveness. This Amendment shall become be effective upon on the date on which the Hedge Provider shall have received each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i)following, (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientHedge Provider:
(ia) the Administrative Agent The Hedge Provider shall have received this Amendmentfrom the Counterparty payment in cash of the Management Fee and the September Settlement Amount, executed and delivered by a duly authorized officer of (a) the Borrower and and
(b) written evidence in form and substance satisfactory to the Required Hedge Provider that the Counterparty has sent a written request to the Lenders (including, in any event, each Lender providing a portion asking that the stated expiration date of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged Letter of Credit provided by the Administrative AgentCounterparty pursuant to the Master Transaction Agreement in the amount of $35,000,000 be extended to provide for expiry of the Letter of Credit no earlier than October 26, 2009;
(iic) written evidence in form and substance satisfactory to the Administrative Agent shall Hedge Provider that any and all third party consents or waivers required in connection with this Amendment have received an acknowledgment and consent been obtained;
(“Acknowledgment and Consent”), substantially in the form d) counterparts of Exhibit B heretothis Amendment, duly executed and delivered by each Guarantorthe Counterparty and the Guarantors;
(iiie) the Administrative Agent shall have received the favorable written opinion or opinions with respect ninth amendment to the Amendment Schedule to the ISDA Master Agreement has been executed and related Loan Documents executed on delivered by the Effective Date Hedge Provider and the transactions contemplated thereby Counterparty;
(f) written evidence of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably corporate authority satisfactory to the Administrative AgentHedge Provider, which may include an opinion of outside counsel, regarding the authority of Counterparty and all Guarantors to execute and deliver this Amendment and to fulfill their respective obligations hereunder;
(ivg) written evidence in form and substance satisfactory to the Administrative Agent shall have received resolutions Hedge Provider that the Credit Agreement Eighth Amendment, in form and substance acceptable to the Hedge Provider in its sole discretion and, for the avoidance of doubt, without any reduction of the boards of directors or other appropriate governing body Revolving Commitments (or of as defined in the appropriate committee thereof) of the Borrower Credit Agreement), has been fully executed and delivered by each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereofparty thereto;
(vh) one or more letters executed by Sempra (collectively, the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower “Sempra Letter”) in form and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes substance satisfactory to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesHedge Provider; and
(xiii) a Closing Checklist, current and accurate as of the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Amendment Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Date.
Appears in 1 contract
Sources: Master Transaction Agreement (MxEnergy Holdings Inc)
Conditions to Effectiveness. This Amendment shall become effective as of the date hereof only upon the date on which each satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “Amendment Effective Date”):
(a) This Amendment shall have been received or waived duly executed by Holdings, the Borrowers, each other Loan Party, the Administrative Agent Agent, the Required Lenders, the Revolving Credit Lenders and, in its discretion (except that each case, duly executed counterparts thereof shall have been delivered to the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:Agent.
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the The Administrative Agent shall have received the favorable written opinion following, each of which shall be originals, facsimiles or opinions with respect “pdf” or similar electronic format (in each such case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and related the other Loan Documents executed to which such Loan Party is a party;
(iii) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Amendment Effective Date after giving effect to the Dutch CV Transactions and the transactions contemplated thereby Upsized Revolving Credit Commitments, from the chief financial officer of Holdings;
(iv) a certificate attesting to compliance with clauses (e), (f), (g), (h), (i) and (j) of this Section III on the Amendment Effective Date from a Responsible Officer of Holdings;
(v) financing statements, filed or duly prepared for immediate filing under the Uniform Commercial Code in all jurisdictions reasonably requested by the Administrative Agents contemporaneously with the execution of this Amendment;
(vi) an opinion from (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇ LLP& Klegerman PC, special Nevada counsel to the Borrower Loan Parties and Guarantors(C) Bird & Bird, special Australian counsel to the Loan Parties, in each case case, dated as of the Amendment Effective Date, addressed in form and substance reasonably satisfactory to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative AgentLenders;
(ivvii) Intellectual Property Security Agreements in the form attached to the U.S. Security Agreement, covering such U.S.-registered Intellectual Property and applications therefor that do not, prior to the date hereof, have a Lien in favor of the Collateral Agent recorded against them at the United States Patent and Trademark Office, executed by the owners of such Intellectual Property; and
(viii) a Revolving Note executed by Holdings and the Australian Borrower in favor of each Revolving Credit Lender that has requested a Revolving Note.
(c) The Administrative Agent shall have received resolutions from Holdings payment in immediately available funds of the boards all accrued costs, fees and expenses (including reasonable fees, expenses and other charges of directors or other appropriate governing body (or of the appropriate committee thereofcounsel) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided owing to the Administrative Agent pursuant to pursuant to Section 11.04 of the Credit Agreement and Section 11.04 of the Amended Credit Agreement, as applicable, in connection with this Amendment.
(i) The Administrative Agent and the Lenders shall have received at least one (1) day prior to the Amendment Effective Date all documentation and other information reasonably requested in writing by them at least two (2) days prior to the Amendment Effective Date in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
(ii) At least five (5) Business Days prior to the Closing Date, certified any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 shall deliver, to each Lender that so requests, a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230 (the “Beneficial Ownership Certification”) in relation to such Borrower.
(e) All approvals, consents, exemptions, authorizations, or other actions by, or notices to, or filings with, any Governmental Authority or any other Person necessary or required for the consummation of this Amendment shall have been received.
(f) The representations and warranties contained in Article 5 of the Amended Credit Agreement shall be true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes in all material respects, except to the Operating Documents of the Borrower extent such representations and each Guarantor since the First Amendment Effective Date or since last provided warranties specifically relate to the Administrative Agent prior to the Effective Datean earlier date, certified as of the Effective Date as in which case they were true and correct by its secretary in all material respects on and as of such earlier date; provided that any such representations and warranties that is qualified as to “materiality”, “Material Adverse Effect” or assistant secretary;similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
(viiig) There shall not exist any action, suit, investigation, litigation, proceeding, hearing or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of the Administrative Agent shall have received certificates issued as Agent, singly or in the aggregate, materially impairs this Amendment or any of a recent date the other transactions contemplated by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as Loan Documents, or that could reasonably be expected to the due existence and good standing of such Person;have a Material Adverse Effect.
(ixh) the Administrative Agent There has been no change, occurrence or development since December 31, 2016 that could reasonably be expected to have a Material Adverse Effect.
(i) No Default or Event of Default shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested exist or be continuing prior to be made on the Effective Date in accordance with the Credit Agreement (or immediately after giving effect to this Amendment);.
(xj) Prior to or substantially concurrently with the Borrower Amendment Effective Date, the Dutch CV Transactions shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement been consummated in full. Notwithstanding anything herein to the extent contemplated by contrary, for purposes of determining compliance with the “conditions specified in this Section III, each Required Lender Commitments” section of the Term Sheet provided shall be deemed satisfied with each received document and each other matter required to be reasonably satisfactory to such Required Lender unless, prior to the Lenders in connection with this AmendmentAmendment Effective Date, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of receives notice from such fees and expenses incurred or to be incurred in connection with the transaction; provided that no Required Lender specifying such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Required Lender’s objections.
Appears in 1 contract
Sources: Credit Agreement (ACCO BRANDS Corp)
Conditions to Effectiveness. This Amendment Agreement shall become effective on the Effective Date and enforceable against the parties hereto upon the date on which each occurrence of the following conditions precedent:
(a) The Administrative Agent shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientreceived:
(i) multiple original counterparts, as requested by the Administrative Agent shall have received Agent, of this Amendment, Agreement duly and validly executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion officers of the Extended Facilities)Borrower, together with all schedules and exhibits hereto and acknowledged by the Guarantors, the Administrative AgentAgent and the Lenders;
(ii) a copy of the Administrative Agent shall have received an acknowledgment fully executed Master Assignment, Agreement and consent Amendment No. 3 to the Senior Revolving Credit Agreement (“Acknowledgment and ConsentFirst Lien Amendment”), substantially ) which provides for the increase in the Borrowing Base to $400,000,000, in substantially the same form of as attached hereto as Exhibit B hereto, duly executed and delivered by each GuarantorC;
(iii) a copy of the Administrative Agent shall have received fully executed Amendment No. 1 to Intercreditor Agreement (“Intercreditor Amendment”) in substantially the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agentsame form as attached hereto as Exhibit D;
(iv) executed original Notes, if any, requested by the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of Lenders made by the Borrower and each Guarantor certified by its secretary or assistant secretary as payable to such requesting Lenders in the amount of such Lenders’ respective Loans after giving effect to the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereoftransactions contemplated hereby;
(v) the Administrative Agent shall have received specimen signatures of officers executed and notarized new Mortgages, and/or amendments or other appropriate representatives executing the Loan Documents on behalf supplements to existing Mortgages, covering additional Oil and Gas Properties of the Borrower and each Guarantorits Subsidiaries, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower in form and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel substance reasonably satisfactory to the Administrative Agent to the extent invoiced necessary to (A) cause the Administrative Agent to have a second priority, perfected Lien (subject only to Liens permitted under Section 9.03 of the Credit Agreement) on at least one (1) Business Day prior to or on 80% of the Effective Date (which may include amounts constituting reasonable estimates Engineered Value of such fees the Oil and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon Gas Properties evaluated in the Engagement Letter, dated March 31, 2010, among Reserve Reports most recently delivered to the Administrative Agent, JPMorgan and (B) increase any maximum amounts referenced in any existing Mortgages to account for the increase in the Loans effected hereby;
(vi) a certificate, dated as of the Effective Date, duly executed and delivered by the Borrower’s and each Guarantor’s Secretary or Assistant Secretary as to (A) no change in the officers’ incumbency delivered at the original closing date for the Credit Agreement, (B) no change in authorizing resolutions delivered at such closing date, and (C) no change in organizational documents delivered at such closing date or, if any such changes have occurred, attaching new incumbency certificates, authorizing resolutions and/or organizational documents, as they case may be;
(vii) certificates of existence and good standing for the Borrower in its state of organization, which certificates shall be dated a date not sooner than 30 days prior to Effective Date; and
(viii) such other information, documents, governmental certificates, agreements, and lien searches as the Administrative Agent or any Lender may reasonably request.
(b) The Administrative Agent shall have received evidence satisfactory to it that conditions precedent and all other actions necessary for the First Lien Amendment have been met or have occurred (other than the consents and agreements provided under this Agreement).
(c) The Administrative Agent shall have received such title information as the Administrative Agent may reasonably require setting forth the status of title to at least 80% of the Engineered Value of the Oil and Gas Properties evaluated in the Reserve Reports most recently delivered to the Administrative Agent.
(d) The representations and warranties in this Agreement shall be true and correct in all material respects.
(e) The Borrower shall have paid all fees required to be paid on the closing of this Agreement as separately agreed among the Borrower, the Arranger, the Administrative Agent and the Borrower (the “Engagement Letter”)Senior Administrative Agent.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become be effective upon completion of the date on which following (each of such documents and/or actions to be in form and substance acceptable to Lender in its sole discretion):
(a) Execution and delivery of this Amendment by all parties hereto;
(b) Execution and delivery by Borrower of an Amended and Restated Revolving Note;
(c) Execution and delivery by Borrower of a Term Note;
(d) Execution of a Subordination Agreement by each of the following parties thereto;
(e) Delivery of a Perfection Certificate by each of the New Borrowers;
(f) Delivery of updated schedules to the Agreement;
(g) Execution and delivery of certificates by the secretary or other authorized officer of each of the New Borrowers, and fully executed resolutions of each of the New Borrowers upon which Lender may conclusively rely until superseded by similar certificates delivered to Lender, certifying that (1) all requisite action has been taken in connection with the transactions contemplated hereby and (2) the names, signatures, and authority of each of the New Borrowers’ authorized signers executing the Loan Documents to which it is a party;
(h) Delivery of a good standing certificate for each of the New Borrowers dated not more than twenty (20) days prior to the First Amendment Effective Date, issued by the Secretary of State or other appropriate official of each of the New Borrowers’ respective jurisdiction of organization and each jurisdiction where the conduct of its business activities or the ownership of its properties necessitates qualification;
(i) Delivery of a copy of the articles of organization, operating agreement and other such similar documents, all certified as true and correct by an authorized officer of each of the New Borrowers;
(j) Filing such Uniform Commercial Code Financing Statements, naming each of the New Borrowers as debtor, as Lender may require in order to give record notice of its security interest in the items listed as Collateral;
(k) Delivery of resolutions of each of the Existing Borrowers approving this Amendment accompanied by a certificate of the authorized officers of each of the Existing Borrowers;
(l) Lender shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt executed legal opinion of clauses (i)▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) Lender, which shall cover such matters incident to the Administrative Agent shall have received transactions contemplated by this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each other Loan Documents as Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agentmay reasonably require;
(iim) the Administrative Agent Lender shall have received an acknowledgment reviewed and consent shall be satisfied with the asset purchase agreement and the other documents executed in connection with the acquisition of substantially all of the assets of GEL Industries, Inc. (“Acknowledgment and Consent”DBA Quality Aluminum Forge), substantially including, without limitation, any environmental assessments received in connection therewith and executed leases entered into in connection therewith (the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment“Purchase Documents”);
(xn) the Payment by Borrower shall have purchasedof any and all costs, defeased, discharged or redeemed at least 80% fees and expenses of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand Lender (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliatesincluding attorney fees) in connection with this Amendment, have been paid in full, including the fees ; and
(o) Such other agreements and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which documents related hereto as Lender may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)require.
Appears in 1 contract
Sources: Credit and Security Agreement (Sifco Industries Inc)
Conditions to Effectiveness. This Amendment shall become be deemed to be effective upon as of the date hereof (the "Effective Date"), subject to:
(a) the delivery to the Agent and the Lenders by (or on which behalf of) each of the Borrowers or the Guarantors, as the case may be, contemporaneously with the execution hereof, of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4)documents, each in form and substance satisfactory to the applicable recipientAgent and the Lenders:
(i) this Amendment signed by each of the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any eventBorrowers, each Lender providing a portion of the Extended Facilities)Guarantors, together with all schedules the Agent, and exhibits hereto and acknowledged by each of the Administrative AgentLenders;
(ii) the Administrative Agent shall have received an acknowledgment Amended and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly Restated Revolving Credit Note executed and delivered jointly and severally by the Borrowers in favor of each GuarantorLender in the amounts of its respective Commitment Percentage of the aggregate Revolving Credit Commitment Amount, which shall (from and after the Effective Date) be deemed to constitute the Revolving Credit Notes held by such Persons as referred to in the Credit Agreement;
(iii) certificates of an appropriate officer of each of the Administrative Agent shall have received Borrowers, dated as of the favorable written opinion or opinions with respect date hereof, as to (x) the Amendment charter documents and related Loan Documents executed on by-laws, each as amended, of each of the Effective Date Borrowers, (y) the corporate actions taken by each of the Borrowers authorizing the execution, delivery, and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower performance hereof, and (Bz) Skaddenthe names, Arpstitles, Slateincumbency, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel and specimen signatures of the officers of each of the Borrowers authorized to sign this Amendment on behalf of each of the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative AgentBorrowers;
(iv) a favorable written legal opinion addressed to the Administrative Agent shall have received resolutions of and the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary Lenders, dated as of the Effective Datedate hereof, approving from outside special counsel (in New York and Illinois) to the Borrowers, with respect to such matters as to the Borrowers and the Loan Documents as the Agent and the Lenders may reasonably request, including (without limitation) opinions as to the corporate authority of each of the Borrowers to execute, deliver, and perform this Amendment, adopting the Loan Documents to be executed by such PersonRevolving Credit Notes, and authorizing the execution other documents contemplated hereby, and delivery the enforceability hereof and thereof;
(v) such evidence as the Administrative Agent may reasonably request such that the Agent shall have received specimen signatures be satisfied that the representations and warranties contained in SECITON 3 hereof are true and correct on and as of officers or other appropriate representatives executing the Loan Documents on behalf date hereof and as of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or GuarantorEffective Date;
(vi) legal existence and good standing certificates issued by the Administrative Agent shall have received any changes appropriate public officials as to the Organizational Documents each of the Borrower Borrowers, and each Guarantor since such other certificates, documents, or instruments with respect to this Amendment, the First Amendment Effective Date Revolving Credit Notes, the other Loan Documents, the Borrowers, and the Guarantors as the Agent or since last provided to any of the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;Lenders may reasonably request; and
(vii) the Administrative Agent shall have received any changes an updating amendment to the Operating Documents of Fee Letter signed by the Borrower Borrowers, the Guarantors and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretaryAgent;
(viiib) the Administrative Agent shall have received certificates issued as of a recent date payment by the Secretaries Borrowers of State an amendment fee in an amount equal to $193,750, to be paid to the Agent, for allocation among the Lenders as they have separately agreed: and
(c) the reimbursement by the Borrowers for the amount of the respective jurisdictions of formation fees and expenses of the Borrower and each Guarantor as Agent's Special Counsel for services rendered to the due existence Agent and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders related expenses in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Mortons Restaurant Group Inc)
Conditions to Effectiveness. This Fourth Amendment shall become effective upon on the date on which each of (the following shall have been received or waived by “Effective Date”) when, and only when:
(a) The Borrower, the Guarantors, the Administrative Agent in its discretion (except that and each Lender shall have executed and delivered to the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) a counterpart of this Section 4), each in form and substance satisfactory to the applicable recipient:Fourth Amendment;
(ib) the The Administrative Agent shall have received resolutions, in form and substance reasonably satisfactory to the Administrative Agent, of the Borrower and each Guarantor authorizing the execution, delivery and performance of this Fourth Amendment, executed and delivered by a duly each such copy being attached to an original certificate of an authorized officer of (a) the Borrower and (b) the Required Lenders (includingeach Guarantor, in any event, each Lender providing a portion dated as of the Extended Facilities)Fourth Amendment Closing Date certifying (i) that the resolutions attached thereto are true, together with all schedules correct and exhibits hereto and acknowledged complete copies of resolutions duly adopted by the Administrative AgentBorrower and each Guarantor, as applicable, (ii) that such resolutions constitute all resolutions adopted with respect to the transactions contemplated hereby, (iii) that such resolutions have not been amended, modified, revoked or rescinded as of the Fourth Amendment Closing Date, (iv) that the articles of organization and regulations of the Borrower and each Guarantor, as applicable, have not been amended or otherwise modified since the effective date of the Credit Agreement, except pursuant to any amendments attached thereto, and (v) as to the incumbency and signature of the officers of the Borrower and each Guarantor executing this Fourth Amendment;
(iic) Each of the representations and warranties made by the Borrower and each Guarantor in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Fourth Amendment Closing Date, except to the extent such representation and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date;
(d) No Default or Event of Default shall have occurred and be continuing;
(e) No event shall have occurred with respect to the Parent, the Borrower and its Subsidiaries, taken as a whole, which, in the reasonable opinion of any of the Lenders, has had, or could reasonably be expected to have, a Material Adverse Effect;
(f) The Administrative Agent shall have received an acknowledgment a fully executed copy of that certain fee letter between the Borrower and consent the Administrative Agent pertaining to certain fees and expenses payable by the Borrower to such parties as set forth in such letter and all fees and other amounts due and payable on or prior to the Fourth Amendment Closing Date, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder;
(“Acknowledgment and Consent”), substantially in g) The Administrative Agent shall have received each of the form of Exhibit B heretoSecurity Documents, duly executed and delivered completed in sufficient number of counterparts for recording, if necessary, and they shall constitute satisfactory security documentation to create first priority security interests in the Collateral, (free and clear of all Liens, other than Liens permitted by each GuarantorSection 6.02 of the Credit Agreement);
(iiih) the The Administrative Agent shall have received the favorable written following:
(i) Uniform Commercial Code Financing Statements (Form UCC-1) and such evidence of filing or arrangements for filing as may be acceptable to the Administrative Agent, naming the relevant Loan Party as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, filed or to be filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant to the Security Documents;
(ii) certified copies of Uniform Commercial Code Requests for Information or opinions Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Administrative Agent, dated a date reasonably near to the Effective Date, listing all effective financing statements which name any Loan Party (under its present name and any previous names) as the debtor and which are filed in the jurisdictions in which filings of any Security Documents are made pursuant to this Agreement, together with copies of such financing statements none of which (other than those (i) securing the Obligations, if such Form UCC-11 or search report, as the case may be, is current enough to list such financing statements, or (ii) that are terminated as of the Effective Date or within a time frame otherwise acceptable to the Administrative Agent) shall cover any Collateral described in the Security Documents; and
(iii) copies of tax Lien searches for each jurisdiction in which a Security Document is filed or recorded pursuant to this Agreement, certified by a party acceptable to the Administrative Agent, listing all tax Liens imposed on any Loan Party or any of its assets (none of which shall cover any Collateral described in the Security Documents);
(i) The Administrative Agent shall have received, and be satisfied with, the title information with respect to the Amendment Collateral and related Loan Documents executed on shall, in its sole and absolute discretion, be satisfied with the Effective Date and status of title to the transactions contemplated thereby of Collateral;
(Aj) in-house legal The Administrative Agent or any Lender or counsel to the Administrative Agent shall receive such other instruments or documents as they may reasonably request;
(k) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of McAfee & ▇▇▇▇, counsel for the Borrower, relating to the Parent, the Borrower and its Subsidiaries, this Fourth Amendment and the Transactions and any other matters as any Lender shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion;
(Bl) Skadden, Arps, Slate, ▇The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special outside counsel for the Borrower, relating to certain of the Loan Parties and any other matters as any Lender shall reasonably request. The Borrower hereby requests such counsel to the Borrower and Guarantors, in each case dated the Effective Date, deliver such opinion;
(m) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and reasonably satisfactory to dated the Effective Date) of each local counsel of the Borrower approved by the Administrative Agent, for each state where any portion of the Collateral is located, relating to the enforceability of the Security Documents in such state and any other matters as any Lender shall reasonably request;
(ivn) the The Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower such documents and each Guarantor certified by its secretary or assistant secretary certificates as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes its counsel may reasonably request relating to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Dateorganization, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;the Borrower, the Guarantors, the Parent and the General Partner, the authorization of the Transactions and any other legal matters relating to the Borrower, the Guarantors, Parent and the General Partner, this Fourth Amendment, the Credit Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel; and
(ixo) the The Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on certificate, dated the Effective Date in accordance and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the Credit Agreement conditions set forth in paragraphs (after giving effect to this Amendment);
a) and (xb) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).Section 4.02
Appears in 1 contract
Conditions to Effectiveness. This Amendment Joinder shall become effective upon on and as of the first date (the “Joinder Effective Date”) on which each of the following shall have been received or waived by the Administrative Agent determines in its sole and absolute discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientfollowing conditions precedent have been satisfied:
(ia) the Administrative Agent shall have received on or before the Joinder Effective Date, duly executed copies of this Amendment, executed and delivered Joinder by each party hereto (which may include a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilitiescopy transmitted by PDF or other electronic method), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(iib) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in on or before the form of Exhibit B heretoJoinder Effective Date, duly executed and delivered copies of the Additional Holder Acknowledgment to the Agreement Among Lenders, executed by each Guarantorthe New Term Loan C Lenders (which may include a copy transmitted by PDF or other electronic method);
(iiic) the Administrative Agent shall have received on or before the favorable written opinion Joinder Effective Date, duly executed copy of the Joinder to Term Loan C Side Letter, executed by the New Term Loan C Lenders and acknowledged by Loan Parties, the Term Loan C Lenders and the warrant holders party thereto (which may include a copy transmitted by PDF or opinions with respect other electronic method);
(d) each of the New Term Loan C Lenders shall have received on or before the Joinder Effective Date, a Term Loan C Note, duly executed and delivered by the Borrower and payable to the Amendment order of such New Term Loan C Lender;
(e) a certificate in substantially the form of Exhibit E of the Credit Agreement, attesting to the Solvency of the Parent and related its Subsidiaries on a Consolidated basis after giving effect to the Joinder and the transactions contemplated thereby, from its chief financial officer;
(f) immediately prior to and after giving effect to this Joinder, all representations and warranties of each Loan Party contained in Article IV of the Credit Agreement are true and correct in all material respects on and as of the date of this Joinder and the Joinder Effective Date as if made on and as of such date (or if stated to have been made at an earlier date, were true and correct in all material respects as of such earlier date) (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects);
(g) after giving effect to this Joinder, no Default or Event of Default has occurred and is continuing;
(h) except for any Governmental Authorizations required in connection with the Lenders’ exercise of remedies under the Loan Documents, all Governmental Authorizations and third party consents and approvals necessary in connection with the Loan Documents executed on the Effective Date and the transactions contemplated thereby shall have been obtained and shall be or remain in effect as of the Joinder Effective Date;
(Ai) in-house legal counsel there shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened in writing before any Governmental Authority that (i) other than as set forth on Schedule IV of the Credit Agreement, could reasonably be expected to have a Material Adverse Effect or materially impair or interfere with the Borrower operations of any Loan Party or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby;
(j) Each New Term Loan C Lender shall have received a duly executed copy of that certain Warrant Agreement, dated as of the date hereof (the “Warrant Agreement”), in a form and substance reasonably satisfactory to such New Term Loan C Lender, pursuant to which the following Warrants (Bas defined in the Warrant Agreement) Skaddenwill be issued: 6,976,744 Warrants to THRC Holdings, Arps, Slate, LP; 697,674 to ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ; and 348,837 to ▇▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;▇▇▇▇▇▇▇.
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixk) the Administrative Agent shall have received a Borrowing Notice duly executed copy of that certain amendment to Registration Rights Agreement, in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement a form and substance reasonably satisfactory to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided Administrative Agent, relating to the Lenders in connection with this Amendment, using cash on hand Registrable Securities (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notesas defined therein); and
(xiil) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agentsuch other statements, JPMorgan certificates, documents, approvals and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate legal opinions as it shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)reasonably request.
Appears in 1 contract
Sources: Joinder to Senior Secured Term Loan Credit Agreement (U.S. Well Services, Inc.)
Conditions to Effectiveness. This Amendment shall become effective upon and each Incremental Lender shall make its applicable Incremental Commitment available to the Borrower under the terms of the Amended Credit Agreement, on the first date on which when each of the following shall conditions precedent have been received or waived by satisfied (the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:“Amendment Effective Date”):
(ia) the Administrative Agent shall have received (i) this Amendment, duly executed and delivered by the Borrower, 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 Incremental Commitments, together with the Incremental Commitments of certain Consenting Lenders under clause (ii)(B) below, are equal to $400 million 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 the existing Lenders (the “Consenting Lenders”) that constitute the Requisite Lenders and Super-Majority Lenders, (iii) a third amended and restated Guaranty, in the form attached hereto as Exhibit H, duly authorized officer of (a) executed and delivered by the Borrower and each Guarantor and (biv) the Required Lenders (includinga third amended and restated Security Agreement, in any eventthe form attached hereto as Exhibit I, each Lender providing a portion of the Extended Facilities), together with all schedules duly executed and exhibits hereto and acknowledged delivered by the Administrative AgentBorrower and each Guarantor;
(iib) the Administrative Agent shall have received an acknowledgment legal opinions with respect to each Loan Party, dated as of Amendment Effective Date and consent (“Acknowledgment addressed to the Administrative Agent, the Lenders and Consent”)the Issuers, substantially in form and substance reasonably acceptable to the form of Exhibit B hereto, duly executed and delivered by each GuarantorAdministrative Agent;
(iiic) the Administrative Agent shall have received (i) a copy of a certificate from the favorable written opinion Secretary of State or opinions with respect other applicable office in the jurisdiction of incorporation or organization of each Loan Party 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, dated as of the Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent, certifying (A) the names and true signatures of each officer of such Loan Party that has been authorized to execute and deliver the 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 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 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 (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 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 and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to Date, or such later date as may be agreed by the Borrower in its reasonable discretion, the reasonable and (B) Skaddendocumented fees and expenses of Weil, Arps, Slate, ▇Gotshal & ▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel ) 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) [Reserved];
(f) the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory shall have paid to the Administrative Agent, for the ratable benefit of each Lender (each, a “New Money Lender”) that, either by executing a Consenting Revolving Credit Lender Consent or a New Revolving Credit Lender Addendum, will hold, Revolving Credit Commitments immediately after giving effect to the Amendment Effective Date, in in excess of the amount of such Lender’s Revolving Credit Commitments as in effect immediately prior to the Amendment Effective Date (the amount of such excess, the “New Commitment Amount”), a closing fee in an amount equal to 0.50% of the aggregate amount of such New Money Lender’s New Commitment Amount on the Amendment Effective Date (outstanding immediately after giving effect to Amendment Effective Date);
(ivg) the Administrative Agent Borrower shall have received resolutions of delivered (i) a restated Borrowing Base Certificate, giving effect to this Amendment, for the boards of directors month ended February 29, 2020 or other appropriate governing body (or of ii) to the appropriate committee thereofextent available and required to be delivered pursuant to Section 6.9(a) of the Borrower Existing Credit Agreement, a Borrowing Base Certificate, giving effect to this Amendment, for the month ended March 31, 2020 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 Guarantor certified by its secretary or assistant secretary of the representations and warranties set forth in Section 5 hereof shall be true and correct as of the Amendment Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(vi) the Administrative Agent no Default or Event of Default shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf occurred and be continuing as of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or GuarantorAmendment Effective Date;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixj) the Administrative Agent shall have received a Borrowing Notice in respect certificate from a Responsible Officer of the Extended Term Loans in each case requested Borrower certifying that to be made on the Effective Date in accordance with extent the Revolving Credit Agreement Commitments were fully funded (after giving effect to this Amendmentthe Revolving Credit Increase), the aggregate outstanding amount of Indebtedness under the Loan Documents would not violate any applicable debt limitations in the Indentures or any other Indebtedness of the Borrower or its Restricted Subsidiaries for borrowed money having a principal or committed amount of $50,000,000 or more;
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiik) the Administrative Agent shall have received evidence a certificate from a Responsible Officer of the Borrower, certifying that all fees payable by on the Amendment Effective Date and immediately after giving effect to the Revolving Credit Increase, the Borrower shall be in compliance with the financial covenant contained in Article V (Financial Covenant) of the Amended Credit Agreement, in each case determined on or before a Pro Forma Basis after giving effect to the Revolving Credit Increase (and assuming the borrowing of the entire Incremental Commitments), as of (i) the Amendment Effective Date and (ii) the last day of the most recently ended fiscal quarter of the Borrower for which Financial Statements have been delivered to the Administrative Agent pursuant to Sections 5.1(a) or (b) of the Amended Credit Agreement, as applicable, in each case in form and substance and with supporting documentation reasonably satisfactory to the Administrative Agent, JPMorgan and the Lenders ; and
(or their affiliatesl) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to shall have received a certificate from a Responsible Officer of the extent invoiced at least one (1Borrower, certifying the conditions set forth in Sections 3(h) Business Day prior to or on and 3(i) have been satisfied as of the Amendment Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Date.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective upon The effectiveness of this Agreement is subject to the date satisfaction on which each or prior to February 28, 1997 of the following conditions precedent:
(a) Loan Documents, etc. The Administrative Agent and the Collateral Agent shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientreceived:
(i) the Administrative Agent shall have received this AmendmentAgreement, executed and delivered by a duly authorized officer of (a) the each Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules HCNA and exhibits hereto and acknowledged by the Administrative AgentLenders;
(ii) the Canadian Credit Agreement, executed and delivered by a duly authorized officer of Sifto and by the Lenders (as defined therein);
(iii) an assignment agreement, in form and substance satisfactory to the Administrative Agent Agent, pursuant to which the lenders ("Existing Lenders") under the Existing Credit Agreement shall have received an acknowledgment assign their commitments thereunder to the Lenders, and consent the Lenders shall purchase the outstanding loans under the Existing Credit Agreement from the Existing Lenders;
(“Acknowledgment and Consent”)iv) for each Lender, substantially in the form of Exhibit B hereto, duly a Note executed and delivered by each GuarantorBorrower;
(iiiv) the Administrative Agent shall have received the favorable written opinion or opinions with respect amendments to the Amendment Security Agreements and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantorsreplacement Lock Box Agreements, in each case dated the Effective Date, addressed having terms satisfactory to the Administrative Agent and the Lenders (and reasonably satisfactory each Lender by executing and delivering this Agreement shall be deemed to have consented to such amendments and replacement Lock Box Agreements in the form distributed to such Lender prior to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Closing Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;); and
(vi) each other document or instrument as may be reasonably requested by the Administrative Agent shall have received any changes to or the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective DateCollateral Agent, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Dateincluding, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
without limitation, (x) the Borrower shall have purchaseda copy of any debt instrument, defeasedsecurity agreement or other material contract to which HCNA or any of its Subsidiaries may be a party, discharged or redeemed at least 80% (y) reaffirmations of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand Guarantees and (not resulting from borrowings under the Credit Agreementz) any instruments or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated other documents reasonably deemed necessary by the “Lender Commitments” section of Collateral Agent to maintain the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable security interests created by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Security Documents.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Harris Chemical North America Inc)
Conditions to Effectiveness. This The Additional Commitments and amendments set forth in this Increase and Amendment Agreement shall become effective upon on the date on which first set forth above (the “Second Amendment Effective Date”) when each of the following conditions set forth in this Section 5 shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientsatisfied:
(ia) the Administrative Agent shall have received counterparts of this AmendmentIncrease and Amendment Agreement, duly executed and delivered by a duly authorized officer on behalf of (ai) Borrower, (ii) the Borrower Lenders, (iii) each Issuing Bank, (iv) the Additional Lender, (vi) Holdings, (vii) each other Guarantor and (viii) each other Transaction Party;
(b) the Required Lenders (including, in any event, each Lender providing a portion as of the Extended Facilities)Second Amendment Effective Date, together with all schedules no Default or Event of Default shall have occurred and exhibits hereto be continuing, or would occur immediately after giving effect to the transactions contemplated by this Increase and acknowledged by the Administrative AgentAmendment Agreement;
(iic) 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 an acknowledgment a duly completed and consent (“Acknowledgment and Consent”), substantially executed Note for the Additional Lender to the extent requested prior to the Second Amendment Effective Date as provided in Section 2.8(e) of the form of Exhibit B hereto, duly executed and delivered by each GuarantorCredit Agreement;
(iiie) the Administrative Agent shall have received a certificate of the favorable written opinion President, a Vice-President or opinions with respect to the Chief Executive Officer of the Borrower dated the Second Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel certifying as to the Borrower satisfaction of the conditions set forth in Section 5(b) and (Bc) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower of this Increase and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative AgentAmendment Agreement;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viiif) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions secretary or an assistant secretary of formation each Transaction Party containing specimen signatures (or certifying as to specimen signatures previously provided to the Administrative Agent) of the Borrower 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 each Guarantor 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 due existence 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 PersonTransaction Party’s jurisdiction of incorporation or organization;
(ixg) the Administrative Agent shall have received a Borrowing Notice in respect favorable written opinions (addressed to the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks and dated as of the Extended Term Loans in each case requested Second Amendment Effective Date) of ▇▇▇▇▇ ▇▇▇▇▇ LLP, New York counsel for the Transaction Parties covering such matters with respect to be made the Transaction Parties, this Increase and Amendment Agreement and any other Credit Documents coming into effect on the Second Amendment Effective Date in accordance with Date, and the transactions contemplated by such Credit Agreement (after giving effect to this Amendment)Documents, as the Administrative Agent shall reasonably request;
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiih) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan Agent and the Lenders (or their affiliates) Additional Lender that the Borrower has agreed to pay in connection with this AmendmentIncrease and Amendment Agreement; and
(i) to the extent required to be paid by the Borrower pursuant to Section 10.13 of the Credit Agreement, have been paid in full, including the fees and expenses of counsel to the Administrative Agent (or its counsel) shall have received, to the extent invoiced at least one (1) no later than two Business Day Days prior to or on the Second Amendment Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement LetterDate, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).payment
Appears in 1 contract
Sources: Credit Agreement (Transocean Ltd.)
Conditions to Effectiveness. This Amendment shall become effective upon subject to:
(a) the date on which each of the following shall have been received or waived receipt by the Administrative Agent in (or its discretion (except that counsel) from each of the Borrower, the Administrative Agent may not waive receipt and the Required Lenders, of clauses either (i), ) an original counterpart of this Amendment signed on behalf of such party or (ii), ) written evidence satisfactory to the Administrative Agent (iii), (iv), (x), (xi) and (xii) which may include telecopy transmission of a signed signature page of this Section 4)Amendment) that such party has signed a counterpart of this Amendment;
(b) the receipt by the Administrative Agent (or its counsel) from each of the Loan Parties, each of either (i) an original counterpart of the Loan Parties’ acknowledgment attached to this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such party has signed a counterpart of the Loan Parties’ acknowledgement;
(c) the receipt by the Administrative Agent of such documents, resolutions and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the entering into and execution of this Amendment , and any other legal matters relating to the Loan Parties, this Amendment or the other Loan Documents, all in form and substance satisfactory to the applicable recipient:Administrative Agent and its counsel;
(id) the receipt by the Administrative Agent shall have received this Amendment, executed of all fees due and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed payable to the Administrative Agent and the Lenders in immediately available funds, including a fee equal to twenty five basis points on the aggregate amount of the Revolving Credit Commitment in effect on the date hereof, the Outstanding Amount of the Term A Loans on the date hereof, and reasonably satisfactory to the Administrative AgentOutstanding Amount of the Term B Loans on the date hereof;
(ive) the payment of all reasonable legal fees and disbursements for which invoices have been presented which have been incurred or sustained by the Administrative Agent shall have received resolutions of in connection with this Amendment and the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective DateCredit Agreement, approving this Amendment, adopting the Loan Documents to be and any other related documents executed by such Person, and authorizing the execution and delivery thereof;and/or delivered in connection therewith; and
(vf) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided delivery to the Administrative Agent prior to the Effective Dateof such other items, certified documents, agreements, items or actions as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)reasonably request.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective as of the date hereof only upon the date on which each satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “Amendment Effective Date”):
(a) This Amendment shall have been received or waived duly executed by Holdings, the Borrowers, each other Loan Party, the Administrative Agent Agent, the Required Lenders, the Revolving Credit Lenders and, in its discretion (except that each case, duly executed counterparts thereof shall have been delivered to the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:Agent.
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the The Administrative Agent shall have received the favorable written opinion following, each of which shall be originals, facsimiles or opinions with respect “pdf” or similar electronic format (in each such case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel: (i) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto; (ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and related the other Loan Documents executed to which such Loan Party is a party; (iii) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Amendment Effective Date after giving effect to the Dutch CV Transactions and the transactions contemplated thereby Upsized Revolving Credit Commitments, from the chief financial officer of Holdings; (iv) a certificate attesting to compliance with clauses (e), (f), (g), (h), (i) and (j) of this Section III on the Amendment Effective Date from a Responsible Officer of Holdings; (v) financing statements, filed or duly prepared for immediate filing under the Uniform Commercial Code in all jurisdictions reasonably requested by the Administrative Agents contemporaneously with the execution of this Amendment; (vi) an opinion from (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇ LLP& Klegerman PC, special Nevada counsel to the Borrower Loan Parties and Guarantors(C) Bird & Bird, special Australian counsel to the Loan Parties, in each case case, dated as of the Amendment - 8- Effective Date, addressed in form and substance reasonably satisfactory to the Administrative Agent and the Lenders and reasonably satisfactory Lenders; (vii) Intellectual Property Security Agreements in the form attached to the Administrative Agent;U.S. Security Agreement, covering such U.S.-registered Intellectual Property and applications therefor that do not, prior to the date hereof, have a Lien in favor of the Collateral Agent recorded against them at the United States Patent and Trademark Office, executed by the owners of such Intellectual Property; and (viii) a Revolving Note executed by Holdings and the Australian Borrower in favor of each Revolving Credit Lender that has requested a Revolving Note.
(ivc) the The Administrative Agent shall have received resolutions from Holdings payment in immediately available funds of the boards all accrued costs, fees and expenses (including reasonable fees, expenses and other charges of directors or other appropriate governing body (or of the appropriate committee thereofcounsel) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided owing to the Administrative Agent prior pursuant to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes pursuant to the Operating Documents Section 11.04 of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% and Section 11.04 of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Amended Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders , as applicable, in connection with this Amendment, using cash on hand . (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; andd)
(xiii) the The Administrative Agent and the Lenders shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day day prior to or on the Amendment Effective Date all documentation and other information reasonably requested in writing by them at least two (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses2) in each case days prior to the extent agreed upon Amendment Effective Date in the Engagement Letter, dated March 31, 2010, among order to allow the Administrative Agent, JPMorgan Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
(ii) At least five (5) Business Days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 shall deliver, to each Lender that so requests, a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230 (the “Engagement LetterBeneficial Ownership Certification”)) in relation to such Borrower.
Appears in 1 contract
Sources: Credit Agreement
Conditions to Effectiveness. This Amendment shall become effective upon (a) The effectiveness of the date on which amendments, waivers and consents set forth herein are subject to the Administrative Agent's receipt of each of the following shall have been received or waived by on the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientdate first set forth above:
(i) counterparts of this Agreement, duly executed and delivered by the Borrowers (including the New Subsidiary) and the Lenders;
(ii) counterparts of the Security Agreement Amendment, duly executed and delivered by the Borrowers (including the New Subsidiary) and the Administrative Agent;
(iii) certified copies of all corporate action taken by the Borrowers (including the New Subsidiary) to authorize the execution, delivery and performance of this Agreement, the Security Agreement Amendment and each other certificate, agreement or other document to be executed by the Borrowers in connection with this Agreement;
(iv) a favorable opinion of outside counsel to the Borrowers (including the New Subsidiary) addressed to the Administrative Agent and Lenders with respect to the Borrowers and such other Persons, this Agreement, the Guaranty, the Security Agreement Amendment, the Joinder Agreement (defined below), the Security Agreement Supplement (defined below), the Stock Pledge Supplement (defined below), and the transactions contemplated hereby and thereby, and such other matters as the Administrative Agent and the Lenders may reasonably request, reasonably satisfactory in form and substance to the Administrative Agent and Lenders;
(v) a Joinder Agreement dated as of the date hereof (the "Joinder Agreement"), duly executed by the New Subsidiary and substantially in the form as set forth in Exhibit I to the Credit Agreement;
(vi) a Security Agreement Supplement dated as of the date hereof (the "Security Agreement Supplement"), duly executed by the New Subsidiary and substantially in the form as set forth in Annex I to the Security Agreement; and
(vii) a Pledge Agreement Supplement dated as of the date hereof (the "Pledge Agreement Supplement"), duly executed by Maxim and substantially in the form as set forth in form of Pledge Agreement Supplement attached to the Pledge Agreement executed by Maxim in favor of the Administrative Agent.
(b) The continued effectiveness of the waivers set forth in clause (i) and clause (j) of Section 3 hereof are subject to the satisfaction in full of the following conditions:
(i) Within ten (10) Business Days after the date hereof, the Administrative Agent shall have received this Amendmentduly executed UCC-3 financing statements with respect to each of the Borrowers listed on Schedule 1 hereto, executed and delivered by a duly authorized officer amending the original UCC-1s that were filed in connection with the closing that occurred on August 26, 1997, to reflect the name changes of (a) the Borrower and (b) the Required Lenders (includingBorrowers described on Schedule 1 hereto, in any eventeach case, each Lender providing a portion of in the Extended Facilities), together appropriate form for filing with all schedules and exhibits hereto and acknowledged by the Administrative Agent;applicable Governmental Authorities; and
(ii) Within ten (10) Business Days after the date hereof, the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions UCC-1 financing statements with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and GuarantorsNew Subsidiary, in each case dated case, duly executed by an officer of the Effective Date, addressed New Subsidiary and in the appropriate form for filing with the applicable Governmental Authorities in order to perfect all of the Liens and security interests granted by the New Subsidiary in favor of the Administrative Agent and for the benefit of the Lenders and reasonably satisfactory pursuant to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Security Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Supplement.
Appears in 1 contract
Sources: Credit Agreement (Maxim Group Inc /)
Conditions to Effectiveness. This Amendment shall become effective upon The effectiveness of this Agreement is --------------------------- subject to the date on which each satisfaction of the following conditions precedent, unless specifically waived in writing by Lender:
(a) Agent shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i)received, (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientAgent:
(i) the Administrative Agent shall have received this Amendment, duly executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentBorrower;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)ESR Security Agreement, substantially in the form of Exhibit B attached --------- hereto, duly executed and delivered by each GuarantorESR;
(iii) a Pledge Agreement in the Administrative Agent shall have received form of Exhibit C hereto duly --------- executed by Electronic Systems accompanied by stock certificate(s) evidencing the favorable written opinion or opinions with respect capital stock of ESR purchased pursuant to the Amendment ESR Purchase Agreement with duly executed stock power(s) and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereofan Irrevocable Proxy;
(v) a Collateral Assignment of Patents, Trademarks and Copyrights (Security Agreement) in the Administrative Agent shall have received specimen signatures form of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified Exhibit E hereto duly --------- executed by the secretary or assistant secretary of such Borrower or GuarantorESR;
(vi) the Administrative an Intercreditor Agreement in form and substance satisfactory to Agent shall have received any changes to the Organizational Documents of the Borrower duly executed by Deutsche Financial Services Corporation and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct acknowledged by its secretary or assistant secretaryESR;
(vii) the Administrative Agent shall have received any changes to the Operating Documents duly executed copies of the Borrower ESR Purchase Agreement and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true all schedules and correct by its secretary or assistant secretaryexhibits thereto;
(viii) the Administrative Agent shall have received certificates issued a closing certificate signed by a senior officer of Borrower, dated as of a recent the date by of this Amendment, stating that (A) the Secretaries of State of representations and warranties set forth in the respective jurisdictions of formation of the Borrower Credit Agreement are true and each Guarantor correct as to the due existence and good standing of such Persondate, (B) Borrower is on such date in compliance with all the terms and provisions set forth in the Credit Agreement, as amended by this Amendment, and (C) on such date no Event of Default or event or condition which, with notice or passage of time or both, would constitute an Event of Default, has occurred or is continuing;
(ix) a company general certificate certified by the Administrative Agent shall have received a Borrowing Notice in respect Secretary of each of the Extended Term Loans in each case requested Borrowers (A) that its Board of Directors has adopted and ratified resolutions which authorize the execution, delivery and performance by it of all Loan Documents to which it is or is to be made on a party, and (B) the Effective Date in accordance names of the officers authorized to sign this Amendment and each of the other Loan Documents to which it is or is to be a party, together with the Credit Agreement (after giving effect to this Amendment)specimen signatures of such officers;
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesUCC-1 financing statements duly executed by ESR;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section an Availability Certificate dated as of the date hereof indicating sufficient Loan Availability for Lenders to make the Additional Term Sheet provided to Loan and the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesESR Revolving Loan; and
(xii) an opinion of counsel to the Administrative Borrower, in form and substance satisfactory to Lender, with respect to the Purchase Agreement, this First Amendment Agreement and the security interests and liens of Agent with respect to the Collateral and such other matters as Lender may request.
(xiii) evidence of insurance by ESR and endorsements thereto naming Agent as loss payee and additional insured.
(xiv) a financial condition certificate dated as of the date hereof in the form of Exhibit G attached hereto. ---------
(xv) an Assignment of Deposit Accounts and Bank Agency Agreement in the form of Exhibit H hereto with respect to all bank --------- accounts established by or on behalf of ESR.
(xvi) such additional documents, instruments and information as Agent or its legal counsel may request.
(b) The representations and warranties contained herein, in the Credit Agreement and in the other Loan Documents, shall be true and correct as of the date hereof, as if made on the date hereof.
(c) No Event of Default or event or condition which, with notice or passage of time or both, would constitute an Event of Default, shall have occurred and be continuing, unless such event, condition or Event of Default has been specifically waived in writing by Agent or Lenders.
(d) Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon has a valid first priority security interest in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)assets of ESR subject only to Permitted Encumbrances.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become be effective as of the date first above written (the "Effective Date") upon the date on which Consignor's receipt of each of the following shall have been received or waived by the Administrative Agent following, in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each case in form and substance satisfactory to the applicable recipientConsignor:
(a) this Amendment duly executed by each of the Consignee and the Consignor;
(b) a Guaranty in the form of Exhibit C hereto (the "eFinlay Guaranty"), duly executed by eFinlay, and a Security Agreement in the form of Exhibit D hereto (the "eFinlay Security Agreement") and a Perfection Certificate in the form of Exhibit E hereto (the "Perfection Certificate"), each duly executed by each of the Consignor and eFinlay;
(c) a copy, certified by the Secretary of eFinlay as being true and complete as of the Effective Date of (i) its charter documents as in effect on such date of certification, (ii) its by-laws as in effect on such date, and (iii) resolutions of its Board of Directors authorizing the Administrative Agent shall have received this Amendmentexecution and delivery by eFinlay of, executed and delivered the performance of its obligations under, each of the Guaranty and the Security Agreement;
(d) an incumbency certificate, dated as of the Effective Date, signed by a duly authorized officer of (a) eFinlay, and giving the Borrower name of and (b) the Required Lenders (includingbearing a specimen signature of each individual who shall be authorized to sign, in any eventthe name and on behalf of eFinlay, each Lender providing a portion of the Extended Facilities)eFinlay Guaranty, together with all schedules the eFinlay Security Agreement, the Perfection Certificate and exhibits hereto and acknowledged by the Administrative Agentthis Amendment;
(iie) good standing certificates for eFinlay, issued by the Administrative Agent shall have received an acknowledgment Secretary of State of its jurisdiction of incorporation and consent (“Acknowledgment and Consent”), substantially each jurisdiction in the form of Exhibit B hereto, duly executed and delivered by each Guarantorwhich it has qualified to do business;
(iiif) UCC-1 consignment and non-consignment financing statements identifying the Consignor as the secured party and eFinlay as the debtor, to be filed in each jurisdiction in which the Consignor requests filing thereof;
(g) the Administrative Agent shall have received the favorable written legal opinion or opinions with respect of Blank Rome Tenzer Greenblatt LLP as to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, certain matters regarding ▇▇▇▇▇▇▇ & ▇ay ▇▇▇ LLP, special counsel ▇▇▇ ▇uaranty and Security Agreement;
(h) an amendment to the Borrower and GuarantorsIntercreditor Agreement, in each case dated the Effective Dateform attached hereto as Exhibit F, addressed to duly executed by the Administrative Dollar Agent and the Lenders and reasonably satisfactory to the Administrative AgentConsignor;
(ivi) the Administrative Agent shall have received resolutions copies of the boards of directors or other appropriate governing body eFinlay Marketing Agreement, the eFinlay Contribution Agreement, the eFinlay FM Services Agreement, the eFinlay Inventory Sale Agreement, the eFinlay Lease Agreement and the eFinlay Services Agreement (or as each such term is defined in the amendments contained in ss.1 hereof), each duly executed by each of the appropriate committee thereof) parties thereto and duly certified by the Secretary or Assistant Secretary of the Borrower Consignee as being true, correct, complete and each Guarantor certified by its secretary in full force and effect, without further amendment or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereofmodification;
(vj) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf evidence of the Borrower Consignee's receipt of all necessary or appropriate third party consents or approvals to the amendments contemplated hereby (including consents or approvals of the execution, delivery and performance by eFinlay of the eFinlay Guaranty and the eFinlay Security Agreement), including, without limitation, consents or approvals from the Dollar Agent and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings applicable lenders under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior NotesDollar Facility; and
(xiik) such other documents or items as the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which Consignor may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)request.
Appears in 1 contract
Sources: Gold Consignment Agreement (Finlay Fine Jewelry Corp)
Conditions to Effectiveness. This Fifth Amendment shall become effective upon on the date on (the “Fifth Amendment Effective Date”) upon which each of the following conditions is satisfied:
(a) The Administrative Agent shall have been received or waived by each of the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientfollowing:
(i) a Borrowing Request with respect to the Administrative Agent shall have received this Amendment, executed Replacement Term B-3 Loans and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentIncremental Term B-3 Loans;
(ii) counterparts to this Fifth Amendment executed by the Administrative Agent shall have received an acknowledgment Borrower, the Subsidiary Guarantors, each Additional Replacement Term B-3 Lender and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each GuarantorIncremental Term B-3 Lender;
(iii) Consents to Fifth Amendment executed by each Converting Term Lender;
(iv) a certificate from a Responsible Officer of the Administrative Agent shall have received Borrower certifying satisfaction of the favorable condition precedent set forth in Section 5(c);
(v) a written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (Ax) in-house legal Ropes & ▇▇▇▇ LLP, in its capacity as counsel to for the Borrower Loan Parties and (By) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special in its capacity as local Maryland counsel to for the Borrower Borrower, each dated as of the date hereof and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders Fifth Amendment Term Lenders;
(vi) (i) a certificate of each Loan Party, dated as of the date hereof and executed by a secretary, assistant secretary or other similarly-titled Responsible Officer thereof, which shall certify (a) that attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization of such Loan Party, as applicable, certified by the relevant authority of its jurisdiction of organization, which certificate or articles of incorporation, formation or organization of such Loan Party, as applicable, have not been amended (except as attached thereto) since the date reflected thereon (or for Loan Parties other than the Borrower, if applicable, a certification that no change has been made to such documents of such Loan Party since the Fourth Amendment Effective Date), (b) that attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, as applicable, together with all amendments thereto as of the Fifth Amendment Effective Date (or for Loan Parties other than the Borrower, if applicable, a certification that no change has been made to such documents of such Loan Party since the Fourth Amendment Effective Date) and such by-laws or operating, management, partnership or similar agreement are in full force and effect, (c) that attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, manager or other applicable governing body authorizing the execution and delivery of this Fifth Amendment, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect and (d) as to the incumbency and specimen signature of each officer, manager, director or authorized signatory executing this Fifth Amendment or any other Loan Document delivered by such Loan Party in connection therewith and (ii) a good standing (or equivalent) certificate for such Loan Party, as applicable, from the relevant authority of its jurisdiction of organization, dated as of a recent date; and
(vii) a solvency certificate in substantially the form of Exhibit O to the Existing Credit Agreement (but with modifications to reflect the Fifth Amendment Effective Date) from the chief financial officer (or other officer with reasonably satisfactory equivalent responsibilities) of the Borrower dated as of the Fifth Amendment Effective Date and certifying as to the matters set forth therein (after giving effect to the transactions contemplated by this Fifth Amendment to occur on the Fifth Amendment Effective Date).
(b) Prior to, or substantially concurrently with the funding of the Term B-3 Loans, (1) the Borrower shall have paid or caused to be paid to the Administrative Agent;, for the account of each Replacement Term B-3 Lender and/or Incremental Term B-3 Lender, a fee in the amount separately agreed between the Fifth Amendment Arrangers and the Borrower, as applicable, which amounts may be offset against the proceeds of the Incremental Term B-3 Loans, (2) the Administrative Agent and the Fifth Amendment Arrangers shall have received (i) all fees required to be paid by the Borrower on the Fifth Amendment Effective Date as separately agreed among the Borrower, the Administrative Agent and the applicable Fifth Amendment Arrangers and (ii) all expenses required to be reimbursed by the Borrower under the Existing Credit Agreement in connection with this Fifth Amendment for which invoices have been presented at least three Business Days prior to the Fifth Amendment Effective Date or such later date to which the Borrower may agree (including the reasonable fees and expenses of legal counsel required to be paid), in each case on or before the Fifth Amendment Effective Date, which amounts may be offset against the proceeds of the Incremental Term B-3 Loans, and (3) the Borrower shall have paid (or caused to be paid) to the Administrative Agent the Cash Prepayment Amount in immediately available funds for the ratable accounts of the applicable Existing Term Lenders, which amounts may be offset against the proceeds of the Incremental Term B-3 Loans (and, for the avoidance of doubt, any such amounts offset against the proceeds of the Incremental Term B-3 Loans shall be deemed to have been paid to the Administrative Agent on behalf of the Borrower).
(ivc) The representations and warranties of the Borrower set forth in Article 3 of the Existing Credit Agreement and the representations and warranties of the applicable Loan Parties set forth in the other Loan Documents (including Section 4 above) shall be true and correct in all material respects on and as of the Fifth Amendment Effective Date; provided that (A) in the case of any representation which expressly relates to a given date or period, such representation shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be and (B) if any representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such representation shall be true and correct in all respects.
(d) The Administrative Agent shall have received resolutions all documentation and other information reasonably requested with respect to any Loan Party in writing by the Administrative Agent or any Fifth Amendment Term Lender at least seven (7) Business Days in advance of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Fifth Amendment Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers which documentation or other appropriate representatives executing the Loan Documents on behalf of the Borrower information is required by regulatory authorities under applicable “know your customer” and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower anti-money laundering rules and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in fullregulations, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)USA PATRIOT Act.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Conditions to Effectiveness. (a) This Amendment Agreement shall become effective upon on the first date (the “Effective Date”) on which or after May 9, 2013, when, and only when, each of the following shall conditions have been received satisfied (or waived by waived) in accordance with the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientterms therein:
(i) the Administrative Agent this Agreement shall have received this Amendment, been executed and delivered by a duly authorized officer of (a) the Borrower Borrower, the other Credit Parties and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly fully executed and delivered by each GuarantorTranche B-1 Participation Notices from Participating Lenders representing 100% of the aggregate outstanding principal amount of the Existing Loans;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on a certificate of each Credit Party dated as of the Effective Date and the transactions contemplated thereby signed by an Authorized Officer of such Credit Party (i) (A) in-house legal counsel certifying and attaching the resolutions or similar consents adopted by such Credit Party approving or consenting to the Borrower and Tranche B-1 Loans, (B) Skaddencertifying that the certificate or articles of incorporation or formation and by-laws or operating (or limited liability company) agreement of such Credit Party either (x) have not been amended since the Closing Date or (y) are attached as an exhibit to such certificate, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel and (C) certifying as to the Borrower incumbency and Guarantorsspecimen signature of each officer executing this Agreement and any related documents on behalf of such Credit Party and (ii) in the case of the Borrower, in each case dated the Effective Date, addressed certifying as to the Administrative Agent matters set forth in clauses (vi), (vii) and the Lenders and reasonably satisfactory to the Administrative Agent(viii) below;
(iv) (A) all fees and out-of-pocket expenses required to be paid or reimbursed by the Administrative Agent Borrower in connection with this Agreement shall have received resolutions been paid or reimbursed and (B) all accrued interest and fees in respect of the boards Existing Loans outstanding immediately prior to effectiveness of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereofAgreement shall have been paid;
(v) the Administrative Agent shall have received specimen signatures an opinion of officers or other appropriate representatives executing H▇▇▇▇ Lovells US LLP, in form and substance reasonably satisfactory to the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or GuarantorAdministrative Agent;
(vi) both immediately before and after giving effect to the Effective Date and the incurrence of the Tranche B-1 Loans thereon, all representations and warranties made by each Credit Party contained in the Credit Agreement and in the other Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date);
(vii) the representations and warranties in Section 5 of this Agreement shall be true and correct in all material respects as of the Effective Date;
(viii) no Default or Event of Default shall exist on the Effective Date before or after giving effect to the effectiveness hereof and the incurrence of the Tranche B-1 Loans;
(ix) The Administrative Agent shall have received any changes a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Organizational Documents of Real Property Collateral (together with, to the extent applicable, a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Guarantor since the First Amendment Effective Date applicable Credit Party relating thereto).
(x) The Lenders shall have received on or since last provided to the Administrative Agent prior to the Effective Date, certified as true all documentation and correct other information reasonably requested by its secretary or assistant secretary;them in writing at least three (3) Business Days prior to the Effective Date in order to allow the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(viib) On the Effective Date, upon the satisfaction of the conditions set forth in Section 4(a) hereof, the outstanding amount of Initial Loans of each Converting Lender (or such lesser amount as may be allocated by the Lead Arranger and/or specified by such Converting Lender in its Tranche B-1 Participation Notice) shall be deemed to be exchanged for an equal outstanding amount of Tranche B-1 Loans under the Credit Agreement. Such exchange shall be effected by book entry in such manner, and with such supporting documentation, as may be reasonably determined by the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date Agent.
(c) On or since last provided to the Administrative Agent prior to the Effective Date, certified the Lenders (including Existing Lenders and the Fronting Banks, if applicable) shall sell and purchase Initial Loans, and make and receive payments, in immediately available funds, among themselves (and the Fronting Banks, if applicable), as directed by the Lead Arranger, in order to permit the exercise of Section 13.7 of the Credit Agreement. All such sales and purchases shall be deemed to have been made in compliance with Section 13.6 and Section 13.7 of the Credit Agreement and are hereby ratified and confirmed. The purchases and sales described in this Section 4(c) shall be effected by book entry in such manner, and with such supporting documentation, as may be reasonably determined by the Administrative Agent.
(d) To the extent there exists any Reallocated Loans, promptly following the Effective Date (but not later than 30 days following the Effective Date), each New Lender and each Converting Lender purchasing additional Tranche B-1 Loans shall purchase Reallocated Loans from the Fronting Banks as true directed by the Lead Arranger in accordance with such Participating Lender’s Tranche B-1 Participation Notice and correct as allocated by its secretary or assistant secretary;the Lead Arranger. Except to the extent otherwise agreed by the Fronting Banks, purchases and sales of Reallocated Loans shall be made on a ratable basis among the Fronting Banks.
(viiie) To the Administrative Agent extent there exists any Non-Participating Lenders, such Non-Participating Lenders shall have received certificates issued be replaced (and the Initial Loans of such Non-Participating Lenders shall be assumed) by one or more Converting Lenders pursuant to Section 13.7 of the Credit Agreement as of a recent date directed by the Secretaries of State Lead Arranger. To the extent that this Section 4(e) and Section 4.1(c) cannot be effected or otherwise at the election of the respective jurisdictions of formation of the Borrower and Lead Arranger, each Guarantor as Participating Lender (other than a Converting Lender (except to the due existence and good standing of extent such Person;
(ixConverting Lender is purchasing additional Tranche B-1 Loans)) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term severally advance Tranche B-1 Loans in each case requested to be made Dollars on the Effective Date in accordance with its Tranche B-1 Participation Notice (or such lesser amount as the Lead Arranger may allocate and/or as such Participating Lender may specify in its Tranche B-1 Commitment). Such funding of Tranche B-1 Loans shall be deemed, automatically and without further act by any Person, to constitute a simultaneous (A) Borrowing by the Borrower of Tranche B-1 Loans pursuant to Section 2.1(a) of the Credit Agreement and (after giving effect B) prepayment of Initial Loans of Non-Participating Lenders pursuant to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% Section 5.1 of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower , and such Participating Lenders shall have repaid the Term Loans under be Tranche B-1 Lenders, and such advance shall constitute a borrowing of Tranche B-1 Loans, for all purposes of the Credit Agreement to and the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the other Credit Agreement) or proceeds from the Year 2010 Senior Notes; andDocuments.
(xiif) the Administrative Agent shall have received evidence that all fees payable Any prepayment of Initial Loans made by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day but prior to or on the Effective Date (which effectiveness of this Agreement may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon applied, in the Engagement LetterLead Arranger’s discretion, dated March 31first, 2010to prepay Initial Loans of Non-Participating Lenders in such manner as the Lead Arranger shall direct, among the Administrative Agentand second, JPMorgan and the Borrower to prepay Initial Loans of Participating Lenders on a pro rata basis (the “Engagement Letter”or, with respect to any Participating Lender, such lesser amount as such Participating Lender may agree).
Appears in 1 contract
Conditions to Effectiveness. This Amendment The amendments provided for in Section 2 above shall become effective upon as of the Effective Date, but shall not become effective as of such date on which unless and until each of the following conditions precedent shall have been received or waived by the satisfied:
(a) The Administrative Agent in its discretion (except that shall have received each of the Administrative Agent may not waive receipt of clauses (i)following, (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientit:
(i) A copy of this Amendment duly executed by the Administrative Agent shall have received this AmendmentBorrower, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent, the Issuing Bank, the Required Banks and each Person that will be a Bank after giving effect hereto;
(ii) A certificate of the Administrative Agent shall have received Secretary or an acknowledgment Assistant Secretary of the Borrower, dated the Effective Date, (A) certifying that the copies of the Borrower's certificate of incorporation and consent by-laws delivered pursuant Section 2.01(a)(i) and (“Acknowledgment iii) of the Credit Agreement continue to be true and Consent”)correct copies thereof as of the Effective Date or, substantially to the extent that is not the case, certifying that attached thereto are true and correct copies of the same as in effect on the Effective Date, (B) certifying that the Borrower's resolutions delivered pursuant to Section 2.01(a)(i) of the Credit Agreement remain in full force and effect as of the Effective Date or, to the extent that is not the case, certifying that attached thereto are true and correct copies of all resolutions that modify such resolutions and that such modifying resolutions are in full force and effect as of the Effective Date, (C) certifying that the individuals certified in the form certificate delivered pursuant to Section 2.01(a)(ii) of Exhibit B heretothe Credit Agreement as holding the offices stated therein continue to hold such offices or, duly executed if that is not the case or if other individuals will be executing this Amendment on behalf of the Borrower, certifying as to the offices held by and delivered by each Guarantorsignatures of the individuals who will be executing this Amendment on behalf of the Borrower, and (D) certifying that attached thereto is a true and correct copy of any additional resolutions authorizing the Borrower's execution and delivery of this Amendment and that such resolutions are in full force and effect as of the Effective Date;
(iii) An opinion of counsel for the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on Borrower, dated the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory Banks, with respect to such matters as the Administrative AgentAgent may reasonably request;
(iv) An opinion of counsel for the Administrative Agent, dated the Effective Date and addressed to the Administrative Agent shall have received resolutions of and the boards of directors or other appropriate governing body (or of Banks, with respect to such matters as the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereofAdministrative Agent may reasonably request;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf A certificate signed by a duly authorized officer of the Borrower Borrower, dated the Effective Date, stating that (A) the representations and each Guarantor, certified by the secretary or assistant secretary warranties contained in Section 3(a)-(d) above are true and correct in all material respects at and as of such Borrower date, (B) the representations and warranties contained in Article III of the Credit Agreement are true and correct in all material respects at and as of such date and (C) no Default has occurred and is continuing or Guarantor;would result from this Amendment.
(vib) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided All fees payable to the Administrative Agent prior to and the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders Banks in connection with this Amendment, using cash on hand (not resulting from borrowings under and all amounts payable pursuant to Section 8.02 of the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall Agreement for which invoices have received evidence that all fees payable by been delivered to the Borrower on or before the Effective Date prior to the Administrative Agentsuch date, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, shall have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become not be effective upon the date on which unless and until each of the following conditions shall have been satisfied, in the Agent's reasonable determination, on or before January 25, 2002:
(a) The Agent shall have received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4)following, each dated the date of delivery thereof or as of an earlier date acceptable to the Agent, in form and substance satisfactory acceptable to the applicable recipientAgent:
(i) the Administrative Agent shall have received a counterpart of this Amendment, duly executed and delivered by a duly authorized officer of (a) the each Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agenteach Guarantor;
(ii) an amended and restated promissory note payable to the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)order of TBCC in the maximum principal amount of US$35,000,000, substantially in the form of Exhibit B heretoA, duly executed and delivered by each GuarantorU.S. Borrower;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect a promissory note payable to the order of LaSalle Business Credit, Inc. in the maximum principal amount of US$15,000,000, substantially in the form of Exhibit B, duly executed by each U.S. Borrower;
(iv) a copy of the resolutions of the Board of Directors (or similar evidence of authorization) of each Loan Party authorizing the execution, delivery and performance of this Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby hereby, attached to which is a certificate of the Secretary or an Assistant Secretary of such Loan Party certifying (A) in-house legal counsel to that such copy of the Borrower resolutions (or similar evidence of authorization) of such Loan Party is a true, complete and accurate copy thereof and that such resolutions have not been amended or modified since the date of such certificate and are in full force and effect and (B) Skaddenthe incumbency, Arpsnames and true signatures of the officers of such Loan Party authorized to sign this Amendment; and
(v) such other agreements, Slateinstruments, documents and evidence as the Agent deems necessary in its sole and absolute discretion in connection with the transactions contemplated hereby; and
(b) the Borrowers shall have reimbursed the Agent for all fees, costs and expenses (including, without limitation, the fees and expenses of Luskin, Stern & Eisler LLP) incurred by the Agent in connection with the prepa▇▇▇▇▇n, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLPation, special counsel to the Borrower and Guarantorsapproval, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Conditions to Effectiveness. This The effectiveness of this Third Amendment shall become effective upon (including the date on which each amendments contained in Article II, the acknowledgement contained in Section 2.2 and the agreements contained in Article III) is subject to the satisfaction (or waiver) of the following conditions (the date of satisfaction (or waiver) of the following conditions, the “Third Amendment Effective Date”):
SECTION 4.1 The Global Agent shall have received a copy of the Third Amendment duly executed by the Borrower, Holdings, each other Credit Party party hereto, the Revolver Agent, the Collateral Agent, the Global Agent, the Required Lenders and the New Lenders. The Lender Consents and this Third Amendment shall have been received duly executed by each Increasing Term Lender, Additional Term Lender, Increasing Revolving Lender, Additional Revolving Lender, Increasing Canadian Lender and Additional Canadian Lender, as applicable, such that, upon such execution by all Increasing Term Lenders, Additional Term Lenders, Increasing Revolving Lenders, Additional Revolving Lenders, Increasing Canadian Lenders or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i)Additional Canadian Lenders, (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative aggregate principal amount of the Converted Term Loans, the Increased Term Loans and the Additional Term Loans is equal to the aggregate principal amount of the Existing Term Loans outstanding immediately prior to the effectiveness of the amendments, acknowledgement and agreements contained herein, (ii) the aggregate amount of the Converted Revolving Commitments, the Increased Revolving Commitments and the Additional Revolving Commitments is equal to the aggregate amount of the Existing Revolving Commitments existing immediately prior to the effectiveness of the amendments, acknowledgement and agreements contained herein, (iii) the aggregate principal amount of the Converted Revolving Loans, the Increased Revolving Loans and the Additional Revolving Loans is equal to the aggregate principal amount of the Existing Revolving Loans existing immediately prior to the effectiveness of the amendments, acknowledgement and agreements contained herein and (iv) the aggregate amount of the Converted Canadian Commitments, the Increased Canadian Commitments and the Additional Canadian Commitments is equal to the aggregate amount of the Existing Canadian Commitments existing immediately prior to the effectiveness of the amendments, acknowledgement and agreements contained herein.
SECTION 4.2 At the time of and immediately after the Third Amendment Effective Date and the making of the New Term Loans and the New Revolving Loans, no Default or Event of Default shall have occurred and be continuing.
SECTION 4.3 The representations and warranties set forth in Article V of this Third Amendment shall be true and correct in all respects on and as of the Third Amendment Effective Date and the date the New Term Loans and the New Revolving Loans are made with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, however, that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects on such respective dates.
SECTION 4.4 The Global Agent shall have received this Amendment, executed and delivered by a duly authorized officer Notice of (aBorrowing meeting the requirements of Section 2.08(b) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together Amended Credit Agreement with all schedules respect to the New Term Loans to be borrowed on the Third Amendment Effective Date and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Revolver Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in a Notice of Borrowing meeting the form requirements of Exhibit B hereto, duly executed and delivered by each Guarantor;Section 2.08(b) of the Amended Credit Agreement with respect to any New Revolving Loans to be borrowed on the Third Amendment Effective Date.
(iii) the Administrative SECTION 4.5 The Global Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel the Guarantors customary for financings of this type and reasonably acceptable to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Global Agent;.
(iv) the Administrative SECTION 4.6 The Global Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of from the Borrower and each Guarantor certified by its secretary or assistant secretary as payment in immediately available funds of the Effective Date(i) all accrued costs, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses (including reasonable fees, expenses and other charges of counsel to the Administrative Agent counsel) to the extent invoiced at least one (1) Business Day prior to or the Third Amendment Effective Date and (ii) all other compensation required to be paid on the Third Amendment Effective Date to the Global Agent and its Affiliates.
SECTION 4.7 The Global Agent shall have received in form and substance reasonably satisfactory to the Global Agent and its counsel: (which may include amounts constituting reasonable estimates i) a certified copy of the Certificate or Articles of Incorporation or equivalent formation document of each Credit Party and any and all amendments and restatements thereof, certified as of a recent date by the relevant Secretary of State and a copy of any Bylaws or equivalent organizational document of each Credit Party and any and all amendments and restatements thereof, certified by the Secretary or Assistant Secretary (or any other officer) of each Credit Party as being complete as of the Third Amendment Effective Date or a certification by the Secretary or Assistant Secretary (or any other officer) of each Credit Party that such Certificate or Articles of Incorporation or equivalent formation document and such Bylaws or equivalent organizational document have not changed since the Closing Date; (ii) a good standing certificate from the Secretary of State of the state of incorporation, dated as of a recent date, listing all charter documents affecting each Credit Party and certifying as to the good standing of such fees Credit Party; (iii) copies of the resolutions of the Board of Directors of the Borrower and expenses incurred each Guarantor authorizing and approving the transactions contemplated by this Third Amendment, the Amended Credit Agreement and the execution, delivery and performance of this Third Amendment and the other Loan Documents to which it is a party; and (iv) a certificate of the Secretary or an Assistant Secretary of the Borrower and of each Guarantor, certifying the names and true signatures of the officers of the Borrower or such Guarantor, as the case may be, authorized to sign the Loan Documents to which the Borrower or such Guarantor is a party and any other documents to which the Borrower or any such Guarantor is a party that may be incurred executed and delivered in connection herewith or a certification by the Secretary or Assistant Secretary (or any other officer) of the Borrower or such Guarantor that there have been no changes to the incumbency certified to the Global Agent on the Closing Date.
SECTION 4.8 The Global Agent, for the benefit of each New Lender that shall execute a counterpart hereof and return such counterpart to the Global Agent prior to 5:00 p.m., New York City time, on September 3, 2014, shall have received an amendment fee (the “Amendment Fee”) equal to the sum of (i) 0.10% of the sum of (A) the aggregate principal amount of the Converted Term Loans of such New Lender and (B) the aggregate amount of the Converted Revolving Commitments (whether used or unused) of such New Lender and (ii) 0.25% of the sum of (A) aggregate principal amount of the Increased Term Loans of such New Lender and (B) the aggregate principal amount of the Additional Term Loans of such New Lender, in each case, as calculated on the Third Amendment Effective Date. The Amendment Fee payable under this Section 4.8 shall be paid to the Global Agent for the account of the applicable New Lenders, shall be paid in immediately available funds and, once paid, shall not be refundable under any circumstances.
(a) The Borrower (or the Global Agent on its behalf) shall have applied, concurrently with the transaction; provided that no such estimate conversion of the Converted Term Loans into New Term Loans and the making of the Increased Term Loans and Additional Term Loans (if any), the aggregate proceeds of the Increased Term Loans and the Additional Term Loans (if any) to prepay in full the principal amount of all Existing Term Loans (other than Converted Term Loans). The Borrower shall thereafter preclude have, concurrently with the final settling conversion of accounts as the Converted Term Loans into New Term Loans and the making of the Increased Term Loans and Additional Term Loans (if any), (i) paid all accrued and unpaid interest and premiums on the aggregate principal amount of the Existing Term Loans and all amounts, if any, due under Section 3.4 hereof and (ii) paid to all Non-Converting Term Lenders all indemnities, cost reimbursements and other Obligations (if any) then due and owing to such fees Non-Converting Term Lenders under the Loan Documents (prior to the effectiveness of this Third Amendment) and expensesof which the Borrower has been notified in writing.
(b) The Borrower (or the Global Agent on its behalf) shall have applied, concurrently with the conversion of the Converted Revolving Loans into New Revolving Loans and the making of New Revolving Loans (other than any Converted Revolving Loans) (if any), the aggregate proceeds of the New Revolving Loans (other than any Converted Revolving Loans) (if any) to prepay in each case full the principal amount of all Existing Revolving Loans (other than Converted Revolving Loans). The Borrower shall have, concurrently with the conversion of the Converted Revolving Loans into New Revolving Loans and the making of the New Revolving Loans (other than any Converted Revolving Loans) (if any), (i) paid all accrued and unpaid interest and premiums on the aggregate principal amount of the Existing Revolving Loans and all amounts, if any, due under Section 3.4 hereof and (ii) paid to all Non-Converting Revolving Lenders all indemnities, cost reimbursements and other Obligations (if any) then due and owing to such Non-Converting Revolving Lenders under the Loan Documents (prior to the effectiveness of this Third Amendment) and of which the Borrower has been notified in writing.
(c) The Borrower shall have, concurrently with the conversion of the Converted Canadian Commitments into New Canadian Commitments, paid to all Non-Converting Canadian Lenders all indemnities, cost reimbursements and other Obligations (if any) then due and owing to such Non-Converting Canadian Lenders under the Loan Documents (prior to the effectiveness of this Third Amendment) and of which the Borrower has been notified in writing.
SECTION 4.10 The Borrower shall have provided (to the extent agreed upon reasonably requested in writing at least five (5) Business Days prior to the Engagement LetterThird Amendment Effective Date), dated March 31at least three (3) Business Days prior to the Third Amendment Effective Date, 2010, among the Administrative Agent, JPMorgan documentation and other information to the Global Agent and the Borrower (New Lenders that is required by regulatory authorities under the applicable “Engagement Letter”)know-your-customer” rules and regulations and anti-money laundering rules and regulations, including the Patriot Act.
Appears in 1 contract
Conditions to Effectiveness. (a) This Third Amendment (except for Section 3(a) hereof) shall become effective upon as of the date on which (the “Amendment Date”) when each of the following shall have been received or waived conditions is met:
(1) receipt by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form Third Amendment duly and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendmentproperly authorized, executed and delivered by a duly authorized officer of (a) the Borrower Borrowers and (b) the Required Lenders Lenders;
(including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged 2) receipt by the Administrative Agent;
(ii) Agent of payment in cash of the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially fees in the form of Exhibit B heretoamounts specified in the Fee Letter dated April 30, duly executed 2007, by and delivered by each Guarantor;
(iii) between the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) SkaddenBorrowers, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative AgentArranger;
(iv3) the Administrative Agent shall have received resolutions without duplication of the boards of directors or other appropriate governing body amounts paid pursuant to clause (or of the appropriate committee thereof2) of the Borrower and each Guarantor certified above, receipt by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and for the Lenders benefit of the consenting Lenders, of the Amendment Fees required in Section 11 above;
(or their affiliates4) in connection with this Amendment, have been paid in full, including payment of all of the Administrative Agent’s reasonable legal fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided preparation and negotiation of this Third Amendment;
(5) receipt by the Administrative Agent of a certificate dated as of the Amendment Date signed by a Responsible Officer of the Parent certifying and attaching the resolutions adopted by each of the Borrowers approving the Facility Increase, and authorizing such Borrower to enter into this Third Amendment;
(6) receipt by the Administrative Agent of a certificate dated as of the Amendment Date signed by a Responsible Officer of the Parent certifying that no such estimate shall thereafter preclude the final settling of accounts as to such fees before and expenses) in each case after giving effect to the extent agreed upon Facility Increase and this Third Amendment, (i) the applicable conditions set forth in Sections 4.02(a) and (b) of the Engagement LetterCredit Agreement will be satisfied and (ii)(A) the Term B Loan, dated March 31as increased hereby, 2010, among is permitted senior Indebtedness under the existing Senior Subordinated Debt Documents and (B) no default under the existing Senior Subordinated Debt Documents has occurred and is continuing or would result after giving effect to the transactions contemplated by the Loans;
(7) receipt by the Administrative Agent, JPMorgan upon the request of any Lender, of a Note evidencing such Lender’s portion of the Term B Loan or any increase in its Commitment duly and properly authorized, executed and delivered by the Borrower Borrowers;
(8) receipt by the “Engagement Letter”Administrative Agent of a pro-forma Compliance Certificate reflecting compliance with Section 7.11 of the Credit Agreement after giving effect to the Facility Increase and this Third Amendment; and
(9) payment in full of the Withdrawing Lender’s outstanding principal amount and any accrued interest and other fees due to the Withdrawing Lender under its Committed Loan as of the Amendment Date.
(b) Section 3(a) of this Third Amendment shall become effective as of the date when each of the following conditions is met:
(1) all of the conditions of Section 13(a) hereof have been met; and
(2) receipt by the Administrative Agent of the consent of all of the existing Revolving Lenders (other than the Withdrawing Lender).
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Conditions to Effectiveness. This Amendment shall will become effective upon as of the date on which each of hereof (the following shall have been received or waived "Amendment Effective Date") upon receipt by the Administrative Agent in its discretion of the following:
(except that a) the fully executed counterparts of this Amendment (including the Ratification of Guaranty hereto by the Guarantors) executed by the Loan Parties, the Administrative Agent may not waive receipt of clauses and the requisite Lenders; and
(i), (ii), (iii), (iv), (x), (xib) and (xii) of this Section 4), a certificate from each Loan Party in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary dated as of the Amendment Effective Date, approving this Amendment, adopting Date as to the Loan Documents to be executed by such Personincumbency of, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received bearing manual specimen signatures of of, the officers or other appropriate representatives executing the authorized signatories of such Loan Documents Party who are authorized to execute and take actions under this Amendment on behalf of the Borrower and each Guarantor, certified by the secretary such Loan Party (or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall a certification that no changes have received any changes been made to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last list provided to the Administrative Agent prior on March 30, 2022 in the certificate delivered pursuant to Section 6(c) of the Effective DateSeventh Amendment to Third Amended and Restated Credit Agreement dated as of March 30, certified as true 2022 (the "Seventh Amendment") among the Loan Parties, the Lenders and correct by its secretary or assistant secretary;
(vii) 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 any changes been made to the Operating such Loan Party's Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided from those delivered to the Administrative Agent prior with the Seventh Amendment Certificate or on May 5, 2021 in the certificate delivered pursuant to Section 4(e) of the Fifth Amendment to Third Amended and Restated Credit Agreement dated as of May 5, 2021; and (ii) the resolutions of each Loan Party's board of 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 Credit Agreement is expected to be effective as of the Eighth Amendment Effective Date, certified then as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as condition to the due existence and good standing effectiveness of such Person;
(ix) reallocation, the Administrative Agent Borrowers shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel also deliver to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Eighth Amendment Effective Date (which may include amounts constituting reasonable estimates the certificate required by Section 2.05(b)(v) of such fees the Credit Agreement and expenses incurred or take the other actions required pursuant to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”Section 2.05(b)(v).
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective upon The effectiveness of this Agreement and the date on which Incremental Revolving Commitments is subject to (i) the truth and accuracy of the representations set forth in Section II above and (ii) the Administrative Agent’s receipt of each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
Administrative Agent (the first date on which each of the conditions pursuant to the foregoing clauses (i) the Administrative Agent and (ii) shall have received been satisfied, the “Increase Effective Date”):
A. counterparts of this Amendment, Agreement executed and delivered by a duly authorized officer of (a) the Borrower and (b) Borrower, the Required Lenders (including, in any eventother Loan Parties, each Additional Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered B. a Note made by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skaddenpayable to such Additional Lender;
C. a Compliance Certificate calculated as of the Increase Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending March 31, Arps, Slate, 2023;
D. an opinion of S▇▇▇▇▇▇▇ & Worcester LLP, an opinion of S▇▇▇ ▇▇▇▇▇ LLP, special Maryland counsel, and an opinion of Stone P▇▇▇▇▇ W▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.C., special Louisiana counsel, in each case, as counsel to the Borrower and Guarantors, in each case dated the Effective DateLoan Parties, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) covering such matters as the Administrative Agent shall have received resolutions may reasonably request;
E. a certificate of the boards of directors Borrower’s chief executive officer, chief legal officer, chief financial officer or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary chief accounting officer certifying as of the Effective Datedate hereof, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
Agreement and the Incremental Revolving Commitments contemplated hereby, that (xA) no Default or Event of Default shall be in existence, (B) the representations and warranties made or deemed made by the Borrower or any other Loan Party in the Credit Agreement and any other Loan Document to which such Loan Party is a party shall be true and correct in all respects on the date hereof except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have purchased, defeased, discharged or redeemed at least 80% been true and correct in all respects on and as of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
, and (xiC) the Borrower shall have repaid is in compliance with the Term Loans under requirements of Section 2.16 of the Credit Agreement Agreement;
F. evidence that all fees, expenses and reimbursement amounts due and payable to the extent contemplated by the “Lender Commitments” section Administrative Agent and any of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; andAgreement have been paid;
(xii) G. all information requested by the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date and each Lender in order to the Administrative Agent, JPMorgan comply with applicable “know your customer” and the Lenders (or their affiliates) in connection with this Amendment, have been paid in fullAnti-Money Laundering Laws and regulations, including without limitation, the fees and expenses of counsel to the Administrative Agent to the extent invoiced Patriot Act, in each case, at least one (1) Business Day prior to the Increase Effective Date; and
H. such other documents, agreements, instruments, certificates or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts other confirmations as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Agent may reasonably request.
Appears in 1 contract
Sources: Incremental Revolving Commitment Assumption Agreement (Service Properties Trust)
Conditions to Effectiveness. This Amendment shall become effective upon on the date (the "Amendment Effective Date") on which all of the following conditions precedent have been satisfied or waived:
(a) execution and delivery of this Amendment by the Borrower, the Agent and the Required Banks;
(b) receipt by the Agent, with a counterpart for each Bank, of the Additional Subsidiary Guarantee in substantially the form of Exhibit A hereto duly executed by each of LOC and NAB Co.;
(c) receipt by the Agent, with a counterpart for each Bank, of the Additional Security Agreement in substantially the form of Exhibit B hereto duly executed by each of LOC and NAB Co.;
(d) receipt by the Agent, with a counterpart for each Bank, of the Second Additional Security Agreement in substantially the form of Exhibit C hereto, duly executed by AII;
(e) receipt by the Agent, with a counterpart for each Bank, the First Amendment to Domestic Pledge Agreement in substantially the form of Exhibit D hereto duly executed by the Borrower and consented to by AII, LOC and NAB Co.;
(f) receipt by the Agent of certificates representing shares pledged pursuant to the First Amendment to Domestic Pledge Agreement, together with an undated stock power for 6 each such certificate executed in blank by a duly authorized officer of the Borrower;
(g) receipt by the Agent of evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions, including, without limitation, the filing of duly executed financing statements on form UCC-1, necessary or, in the opinion of the Agent, desirable to perfect the Liens created by the Additional Security Agreement, the Second Additional Security Agreement and the First Amendment to Domestic Pledge Agreement shall have been completed;
(h) receipt by the Agent of the results of a recent search by a Person satisfactory to the Agent, of the Uniform Commercial Code, judgment and the tax lien filings which may have been filed with respect to personal property of each of LOC, NAB Co. and AII, and the results of such search shall be reasonably satisfactory to the Agent;
(i) receipt by the Agent, with a counterpart for each Bank, of a certificate of the Secretary or Assistant Secretary of each of the following shall have been received Borrower, LOC, NAB Co. and AII, dated the Amendment Effective Date, as to the incumbency and signature of their respective officers executing each of this Amendment, the Additional Subsidiary Guarantee, the Additional Security Agreement, the Second Additional Security Agreement and the First Amendment to Domestic Pledge Agreement, as applicable, together with satisfactory evidence of the incumbency of such Secretary or waived Assistant Secretary;
(j) receipt by the Administrative Agent in its discretion (except that Agent, with a counterpart for each Bank, of a copy of the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each resolutions in form and substance satisfactory to the applicable recipient:
Agent, of the Board of Directors of each of the Borrower, LOC, NAB Co., and AII authorizing (i) the Administrative Agent shall have received execution, delivery and performance of this Amendment, Amendment and the other documents being executed and delivered by a duly authorized officer of (a) the Borrower in connection herewith and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent granting by it of the pledge and security interest granted by it pursuant to such documents, certified by their respective Secretary or an Assistant Secretary as of the Amendment Effective Date, which certificate shall state that the resolutions therein certified have received not been amended, modified revoked or rescinded as of the date of such certificate; and
(k) receipt by the Agent, with a copy for each Bank, of an acknowledgment and consent (“Acknowledgment and Consent”)opinion, dated the Amendment Effective Date, of Winston & Stra▇▇ ▇▇ substantially in the form of Exhibit B F hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Sources: Credit Agreement (Lear Seating Corp)
Conditions to Effectiveness. This The provisions of Sections 2 and 3 of this Amendment shall become effective upon as of the date hereof on the date (the “Amendment No. 5 Effective Date”) on which each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) an amendment fee in the Borrower amount of $25,000 for the Ratable account of the Lenders, which fee is earned on such date and is not subject to refund or rebate of any kind whatsoever, and (b) the Required Lenders (including, in any eventfollowing documents, each Lender providing a portion of which shall be satisfactory in form and substance to the Extended Facilities)Administrative Agent and in sufficient copies for each Lender:
(i) this Amendment duly executed and delivered by the Borrowers, together with all schedules the Lenders and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form a certificate of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of each Borrower having attached thereto the articles or certificate of incorporation or other constituent documents of such Borrower (or Guarantorcontaining the certification of such secretary or assistant secretary that no amendment or modification of such documents has become effective since the last date on which such documents were last delivered to the Lenders), all corporate or company action, including shareholders’ or members’ approval, if necessary, has been taken by such Borrower and/or its shareholders or members to authorize the execution, delivery and performance of this Amendment and to the further effect that the incumbency certificate most recently delivered to the Lenders remains in effect, unchanged;
(viiii) a certificate of the president or chief financial officer of MasTec stating that, to the best of his or her knowledge and based on an examination sufficient to enable him or her to make an informed statement, both before and after giving effect to the Amendment,
(A) all of the representations and warranties made or deemed to be made under the Loan Agreement are true and correct on and as of the Amendment No. 5 Effective Date, and
(B) no Default or Event of Default exists; and the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor be satisfied as to the due existence truth and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notesaccuracy thereof; and
(xiiiv) such other documents and instruments as any Lender through the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)reasonably request.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Mastec Inc)
Conditions to Effectiveness. This Amendment shall not become effective upon until the date on which Agent receives the following:
(a) a counterpart of this Amendment, executed by the Borrower, the Guarantors and each of the following shall have been received or waived Lenders; and
(b) an amendment fee of $56,250 paid by the Administrative Agent Borrower for the PRO RATA account of each Lender based on such Lender's percentage of the Total Acquisition Commitment and the increase of such Lender's Total Commitment as effected by this Amendment; and
(c) an arrangement fee for the account of BancBoston Securities Inc. in its discretion the amount set forth in the term sheet relating to this Amendment; and
(except that d) Acquisition Notes, duly executed and delivered by the Administrative Agent may not waive receipt Borrower for each Lender; and
(e) the first amendment to the UK Facility, executed by the parties to the UK Facility; and
(f) Amended and Restated Revolving Credit Notes, duly executed and delivered by the Borrower for each Lender; and
(g) a copy, certified by a duly authorized officer of clauses the Borrower and the Holding Company to be true and complete on the date hereof, of each of (i)) such Person's charter or other incorporation documents as in effect on such date of certification, (ii), ) such Person's by-laws as in effect on such date and (iii)) proof of at corporate action necessary for the valid execution, (iv), (x), (xi) delivery and (xii) performance by the Holding Company and each of its Subsidiaries of this Section 4)Amendment, each the Acquisition Notes and the other documents entered into in connection herewith to which such Person is or is to become a party; and
(h) an opinion of counsel for the Borrower and the Guarantors in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (CRC Evans International Inc)
Conditions to Effectiveness. This Amendment The amendments contained in Section 1 shall become not be effective upon unless on or before May 14, 2004 (time being of the essence) each of the following conditions precedent is satisfied (the date on which each of such conditions are satisfied, the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:“Amendment Effective Date”):
(ia) the Administrative Agent shall have received counterparts of this Amendment, Amendment executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Lead Arranger, Syndication Agent, Administrative AgentAgent and Borrower;
(iib) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)i) executed counterparts of this Amendment or a signed authorization to execute this Amendment from existing Tranche B Term Lenders and, substantially in the form of Exhibit B hereto, duly executed and if such counterparts or authorizations are not delivered by all existing Tranche B Term Lenders, additional Tranche B Term Commitments from one or more banks, financial institutions or similar institutions such that the aggregate amount of Tranche B Term Loan Commitments after giving effect to such counterparts, authorizations and Commitments will be equal to $185,000,000, (ii) executed counterparts of this Amendment or a signed authorization to execute this Amendment from existing Revolving Lenders and, if such counterparts or authorizations are not delivered by all existing Revolving Lenders, additional Revolving Commitments from one or more banks, financial institutions or similar institutions such that the aggregate amount of Revolving Commitments after giving effect to such counterparts, authorizations and Commitments will be equal to $55,000,000, and (iii) an Addendum signed by each GuarantorPerson providing any such additional Tranche B Term Commitment or Revolving Commitment;
(iiic) all fees and expenses then due and payable to the Lead Arranger or any Agent or Lender under the Loan Documents or relating thereto (including the fees payable under Section 3.5(a)(i) of the Credit Agreement, as amended hereby, and expense reimbursements to the extent invoiced at least one day Business Day prior) shall have been paid in full in immediately available funds; and
(d) the Administrative Agent shall have received such other documents and instruments as it or the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and Lead Arranger may reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)request.
Appears in 1 contract
Sources: Credit Agreement (Itron Inc /Wa/)
Conditions to Effectiveness. This The effectiveness of this Amendment shall become effective upon the date on which each is subject to satisfaction of the following shall have been received or waived conditions and the provisions of Section 6:
(a) receipt by the Administrative Agent from each of the parties hereto of duly executed counterparts of this Amendment signed by such party.
(b) the fact that the representations and warranties of each of the Borrowers contained in its discretion Article 4 of the Credit Agreement and Section 6 of this Amendment shall be true on and as of the date hereof;
(except that c) receipt by the Administrative Agent may not waive receipt from each of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) the parties thereto of this Section 4), each a duly executed counterpart of the R▇▇▇▇▇▇▇ Pledge Amendment in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(iid) receipt by the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)of legal opinions of T▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower Guarantors, Bull Run, Capital and (B) SkaddenDatasouth, Arps, Slate, and D▇▇▇▇▇▇▇ & ▇▇▇▇ Shohl LLP, special counsel to the Borrower Host, each with respect to this Amendment in form and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably substance satisfactory to the Administrative Agent;
(ive) receipt by the Administrative Agent shall have received with respect to each Credit Party, as applicable, of (i) a true, correct and complete certified copy of the resolutions of such Credit Party authorizing the boards execution, delivery and performance by such Credit Party of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting (ii) a certificate of incumbency with respect to each officer executing this Amendment on behalf of such Credit Party, (iii) a certificate of good standing from the Loan Documents to be Secretary of State for the jurisdiction of such Credit Party’s incorporation, and (iv) a closing certificate executed by an Authorized Signatory of such Person, Credit Party in form and authorizing substance satisfactory to the execution and delivery thereofAdministrative Agent;
(vf) receipt by the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing a duly executed Tranche B Revolving Loan Note to the Loan Documents on behalf order of each Tranche B Revolving Lender in the amount of such Tranche B Revolving Lender’s pro rata share of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or GuarantorTranche B Revolving Loan Commitment;
(vig) receipt by the Administrative Agent of satisfactory evidence that upon the effectiveness of this Amendment, the Borrowers and the Lenders shall have received any changes to the Organizational Documents be in full compliance with Regulations T, U and X of the Borrower and each Guarantor since Board, including evidence that the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% sum of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand Loans plus the Letter of Credit Obligations will not exceed an amount equal to the sum of (not resulting from borrowings under i) 100% of the Credit Agreementthen current fair market value of all Collateral (other than Collateral constituting Margin Stock) or proceeds from plus (ii) 50% of the Year 2010 Senior Notesthen current market value of all Collateral constituting Margin Stock;
(xih) receipt by the Borrower shall have repaid Administrative Agent of a Solvency Certificate of the Term Loans under Borrowers on a consolidated basis with each of their Subsidiaries executed by the Credit Agreement Chief Financial Officer of the Parent and Host, regarding the solvency and financial condition of the Borrowers and their Subsidiaries, that all internally prepared financial statements fairly present the financial condition of the Borrowers and their subsidiaries for the periods and as of the dates to which they relate, in form and substance satisfactory to the extent contemplated Administrative Agent, together with copies of financial projections through August 31, 2006;
(i) receipt by the “Lender Commitments” section Administrative Agent of copies of the Term Sheet provided draft unaudited financial statements of the Parent and its Subsidiaries for the fiscal year ended August 31, 2005;
(j) receipt by the Administrative Agent of a written certificate from the Borrowers and the Parent stating that all representations and warranties made in the Loan Documents are true and correct in all material respects as to the date hereof (except for representations and warranties made as of a particular date); and
(k) payment by the Borrowers of all fees and expenses owing to the Administrative Agent and the Lenders in connection with the preparation, negotiation and execution of this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) as well as in connection with this Amendmentthe transactions contemplated herein, have been paid in fullincluding, including the without limitation, all reasonable fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Sources: Credit Agreement (Bull Run Corp)
Conditions to Effectiveness. This Amendment The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder, shall not become effective upon until the date on which each of the following conditions which is not otherwise addressed in Section 5.16 hereof is satisfied (or waived in accordance with Section 10.2).
(a) The Administrative Agent, its Affiliates and the Lenders shall have been received payment of all fees, expenses and other amounts due and payable on or waived prior to the Effective Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) invoiced a reasonable period of time prior to the Effective Date and required to be reimbursed or paid by the Borrower hereunder, under any other Loan Document and under any agreement with the Administrative Agent in its discretion or SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
(except that the b) The Administrative Agent may not waive receipt (or its counsel) shall have received the following (other than any of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this the following deliverables which are expressly required to be delivered pursuant to Section 45.16), each to be in form and substance satisfactory to the applicable recipientRequired Lenders:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent shall have received (which may include telecopy or pdf transmission of a signed signature page of this Amendment, Agreement) that such party has signed a counterpart of this Agreement;
(ii) duly executed Notes payable to each requesting Lender;
(iii) one or more Perfection Certificates duly completed on a pro forma basis giving effect to the Acquisition and delivered executed by a duly authorized officer of (a) the Borrower and each other Loan Party;
(biv) one or more Subsidiary Guaranty Agreements duly executed by each Subsidiary (other than Foreign Subsidiaries);
(v) the Required Lenders (including, in any event, Security Agreement duly executed by the Borrower and each Lender providing a portion of the Extended Facilities)other Loan Party, together with UCC financing statements, delivery of all schedules certificated securities and exhibits hereto instruments pledged under the Security Agreement, executed stock powers and acknowledged other appropriate endorsements and other documents related thereto;
(vi) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering all Real Estate listed on Schedule 3.1, together with the Environmental Indemnity Agreement, Representation, Warranties and Covenants Agreements relating to the Real Estate in form and substance reasonably acceptable to the Administrative Agent, legal opinions relating to the validity and enforceability of such documents, title policies and environmental site assessment and such other related documents, agreements, instruments as may be reasonably required by the Administrative Agent;
(iivii) the Administrative Agent shall have received an acknowledgment and consent Collateral Assignment duly executed by each party thereto;
(“Acknowledgment and Consent”), substantially viii) a certificate of the Secretary or Assistant Secretary of each Loan Party in the form of Exhibit B hereto3.1(b)(viii), duly executed attaching and delivered by certifying copies of its Organizational Documents, and of the resolutions of its board of directors or similar governing body authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each Guarantorofficer of each Loan Party executing the Loan Documents to which it is a party;
(iiiix) a certificate of good standing from the Administrative Agent shall Secretary of State of the jurisdiction of incorporation or organization of each Loan Party and each other jurisdiction where the failure of such Loan Party to be qualified to do business as a foreign entity in such jurisdiction could reasonably be expected to have received the a Material Adverse Effect;
(x) a favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇, LLP, special counsel to the Loan Parties, together with local counsel opinions described in clause (vi) above, in each case addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(xi) a certificate in the form of Exhibit 3.1(b)(xi), dated the Effective Date and signed by a Responsible Officer of the Borrower, certifying that (A) all Specified Representations are true and correct in all material respects (without duplication of any materiality, Material Adverse Effect or similar qualifiers contained in such representations and warranties), (B) the representations and warranties by or with respect to the Target contained in the Acquisition Agreement material to the interest of the Lenders are true and correct in all material respects (without duplication of any materiality, “Material Adverse Effect” or similar qualifiers contained in such representations and warranties) solely to the extent that Scripps Media has the right to terminate its obligations under the Acquisition Agreement or decline to consummate the Acquisition as a result of such breach or inaccuracy of such representations; provided that such certification as to representations and warranties in the Acquisition Agreement regarding the Target shall be qualified by the Borrower’s knowledge upon reasonable inquiry, (C) that each of the conditions set forth in Section 8.02 of the Acquisition Agreement (without giving effect to any amendment to or waiver of such conditions by the Borrower or its Subsidiaries which has not been consented to by the Administrative Agent, unless such waiver or amendment is not materially adverse to the interests of the Lenders or the Administrative Agent; provided that any decrease in purchase price (other than a decrease in the purchase price in an amount not to exceed 10% of the purchase price and so long as such decrease results in a dollar for dollar reduction of the Term Loan Commitment) shall be deemed materially adverse to the interests of the Lenders and the Administrative Agent), and (D) that since October 3, 2011, there has not occurred a “Material Adverse Effect” (as defined in the Acquisition Agreement as in effect on such date) which gives Scripps Media the right to terminate the Acquisition Agreement or not to consummate the Acquisition pursuant to Section 8.02 of the Acquisition Agreement;
(xii) copies of all Acquisition Documents certified as true, complete and correct as of the Effective Date;
(xiii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or the Acquisition Documents (including (i) those required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended and the regulations promulgated thereunder and (ii) consent from the FCC regarding transfer of control of the FCC licenses to the Borrower and Guarantorsits Subsidiaries, but excluding consents or approvals with respect to the agreements listed on Schedule 4.4(b) hereof), and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority (including those required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and the regulations promulgated thereunder) regarding this Agreement (or any transaction being financed with the proceeds hereof), the Acquisition Documents or the Related Transactions shall be ongoing;
(xiv) copies of the unaudited balance sheet and related statement of operations and broadcasting cash flows of the Target for each fiscal quarter ending after December 31, 2010 and at least 45 days prior to the Effective Date, prepared on a basis consistent with the past practices of the Target;
(xv) a duly executed funds disbursement agreement with respect to the Related Transactions, together with a report setting forth the sources and uses of the proceeds of any Loan incurred on the Effective Date;
(xvi) certificates of insurance with respect to each Loan Party describing the types and amounts of insurance (property and liability) maintained by the Loan Parties, naming the Administrative Agent as additional insured on liability policies and with lender loss payee endorsements for property and casualty policies, in each case dated case, meeting the Effective Daterequirements of Section 5.8;
(xvii) pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax liens, against the assets of the Loan Parties;
(xviii) UCC, tax lien and judgment search results with respect to the Borrower and each other Loan Party from all appropriate jurisdictions and filing offices;
(xix) delivery of Collateral Access Agreements and Blocked Account Agreements required pursuant to the terms hereof;
(xx) certified copies of all material leases, bailee agreements, intellectual property licenses, inventory licensing agreements, all other Material Contracts and such other diligence items as the Administrative Agent may require;
(xxi) evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens which are prior as a matter of law);
(xxii) a solvency certificate duly executed by the chief financial officer of the Borrower, addressed to the Administrative Agent and for the benefit of the Lenders and dated the Effective Date in substantially the form of Exhibit 3.1(b)(xxii), giving pro forma effect to the Acquisition and the Borrowings to be made on the Effective Date;
(xxiii) the results of lien searches with respect to the Borrower, its Subsidiaries, the Target and the Collateral, indicating no Liens other than Permitted Liens are perfected with respect to the Collateral, and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(ivxxiv) the cash management system of the Borrower, including without limitation all Collateral Related Accounts and the Blocked Accounts, shall be reasonably satisfactory to the Administrative Agent and shall provide for springing full dominion and control in favor of the Administrative Agent over all deposit accounts required pursuant to Section 7.16, if an Event of Default has occurred and is continuing;
(xxv) a certificate signed by the chief financial officer or treasurer of the Borrower, setting forth in reasonable detail computations evidencing that the Leverage Ratio as of the last day of the most recently ended Fiscal Quarter occurring at least 45 days prior to the Effective Date is not greater than (x) if the Effective Date occurs on or before February 14, 2012, 2.65 to 1.00, or (y) if the Effective Date occurs after February 14, 2012, the Leverage Ratio for Period I as set forth in Section 6.1 (it being understood that, for purposes of determining the Leverage Ratio under this clause (xxv), Consolidated Total Debt shall be determined on a pro forma basis after giving effect to the consummation of the Related Transactions and the incurrence of the Obligations); and
(xxvi) to the extent requested by any Lender, all documentation and other information required by bank regulatory authorities under applicable “know your customer”, United States Requirements of Law relating to terrorism, sanctions or money laundering (the “Anti-Terrorism Laws”), including the United States Executive Order No. 13224 on Terrorist Financing (the “Anti-Terrorism Order”), the Patriot Act and AML Legislation.
(c) Subject only to the funding of the initial Loans hereunder and the use of proceeds thereof, (i) as certified to the Administrative Agent, all conditions precedent to the consummation of the Acquisition will have been satisfied and the Acquisition will have been consummated in accordance with the terms of the Acquisition Agreement, in each case without giving effect to any amendments, waivers or consents by the Borrower or any Subsidiary of the Borrower that are materially adverse to the interest of the Lenders or the Arranger, as determined by the Administrative Agent, without the consent of the Administrative Agent, (ii) all obligations under the Existing Credit Agreement will have been repaid in full, as evidenced by a payoff letter duly executed and delivered by the Borrower and the existing agent, and (iii) the Borrower or a wholly-owned Subsidiary of the Borrower shall own 100% of the issued and outstanding Equity Interests of the Target. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has funded its Loans on the Effective Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by notice from such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent Lender prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment proposed Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by specifying its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)objection thereto.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Scripps E W Co /De)
Conditions to Effectiveness. This Amendment Joinder Agreement shall become effective upon on April 10, 2012 (the date on which each of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi“Term B-3 Joinder Effective Date”) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientwhen:
(i) the Administrative Agent this Joinder Agreement shall have received this Amendment, been executed and delivered by a duly authorized officer of (a) the Borrower and (b) Borrower, the Required Lenders (including, in any eventLoan Parties, each Term B-3 Loan Lender providing a portion of the Extended Facilities), together with all schedules and exhibits party hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received a certificate of each Loan Party dated as of the Term B-3 Joinder Effective Date signed by a Responsible Officer of such Loan Party (i) (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the Term B-3 Loans, (B) certifying that the certificate or articles of incorporation or organization (certified by the Secretary of State or like authority of the state of its incorporation or organization) and by-laws or operating (or limited liability company) agreement of such Loan Party either (x) have not been amended since the Restatement Date or (y) are attached as an acknowledgment exhibit to such certificate, and consent (“Acknowledgment C) certifying as to the incumbency and Consent”specimen signature of each officer executing the Joinder Agreement and any related documents on behalf of such Loan Party and (ii) in the case of the Borrower, certifying as to the matters set forth in clauses (v), substantially (vi) and (viii) below (except that the representations and warranties contained in subsections (a) and (b) of Section 5.06 of the form Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Exhibit B hereto, duly executed and delivered by each GuarantorSection 6.01 of the Credit Agreement);
(iii) all fees and out-of-pocket expenses required to be paid or reimbursed by the Borrower as separately agreed by the Borrower and Bank of America, N.A., ▇.▇. ▇▇▇▇▇▇ Securities LLC, ▇▇▇▇▇▇▇ Sachs Lending Partners LLC, ▇▇▇▇▇ Fargo Securities, LLC, Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc. (collectively, the “Bookrunners”), including fees and out-of-pocket expenses of the Bookrunners and all invoiced fees and expenses of counsel to the Administrative Agent and the Bookrunners, shall have been paid or reimbursed, on or prior to the date hereof;
(iv) the Term B-3 Loan Lenders and the Administrative Agent shall have received the favorable written (a) an opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Borrower in form and Guarantors, in each case dated the Effective Date, addressed substance reasonably satisfactory to the Administrative Agent and (b) Hunton & ▇▇▇▇▇▇▇▇ LLP, special Virginia counsel to the Lenders Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(ivv) both immediately before and after giving effect to the Administrative Agent shall have received resolutions Term B-3 Loans, the representations and warranties of the boards of directors or other appropriate governing body (or Loan Parties contained in Article V of the appropriate committee thereof) of the Borrower Credit Agreement and in each Guarantor certified by its secretary or assistant secretary other Loan Document shall be true and correct in all material respects on and as of the Term B-3 Joinder Effective DateDate as though made on such date (except to the extent that such representations and warranties specifically refer to an earlier date, approving this Amendment, adopting the Loan Documents to in which case they shall be executed by such Person, true and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary correct in all material respects as of such Borrower or Guarantorearlier date);
(vi) the Administrative Agent representations and warranties in Section 10 of this Joinder Agreement shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as be true and correct by its secretary or assistant secretaryin all material respects as of the date hereof;
(vii) the Administrative Agent shall have received any changes to the Operating Documents a notice of such Term B-3 Loan as required by Section 2.02 of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;Credit Agreement; and
(viii) the Administrative Agent no Default or Event of Default shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made exist on the Effective Date in accordance with the Credit Agreement (date hereof before or after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)B-3 Loans.
Appears in 1 contract
Conditions to Effectiveness. (a) This Amendment Agreement shall become effective upon as of the date (the “Amendment Effective Date”) on which each of the following conditions shall have been received or waived by satisfied (i) the Existing Administrative Agent (or its counsel) shall have received counterparts of this Agreement that, when taken together, bear the signatures of (x) the Borrower and (y) Bank of America, N.A., acting in its discretion capacity as (except that I) the Existing Administrative Agent may not waive receipt under the Existing Credit Agreement and on behalf, and with the authority of clauses each of the Lenders thereunder to consent to the amendment and restatement of the Existing Credit Agreement in the form attached hereto as Annex A and (II) the administrative agent under the Restated Credit Agreement (the “New Administrative Agent”) and on behalf, and with the authority of each of the lenders under the Restated Credit Agreement (the “New Lenders”) to make the representations, consent to the terms and agreements set forth herein and to release their signature pages to the Restated Credit Agreement on the terms set forth herein) and (ii) each of the conditions set forth in Section 4.01 of the Restated Credit Agreement shall have been satisfied or waived.
(b) Notwithstanding anything to the contrary contained herein, in the Existing Credit Agreement or in the Restated Credit Agreement, Bank of America, N.A., acting in its capacity as the New Administrative Agent and on behalf of and with the consent of each of the New Lenders, hereby confirms and agrees as follows:
(i) it has received executed and undated copies of each of the documents referred to in Sections 4.01(a) and (e) of the Restated Credit Agreement and each such document being satisfactory in form and substance to the New Agent and each New Lender;
(ii) each of the other conditions set forth in Section 4.01 of the Restated Credit Agreement has been satisfied on and as of the date hereof (other than the conditions set forth in Sections 4.01(b), (h), (i), (ii), (iii), (iv), (x), (xij) and (xiik) of this Section 4thereof), each in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) upon delivery by the Borrower of a notice in the form attached hereto as Annex B confirming the satisfaction of each of the conditions set forth in Sections 4.01(h), (i), (j) and (k) of the Restated Credit Agreement, each document referenced in Sections 4.01(a) and (e) of the Restated Credit Agreement shall be dated by the New Agent the date of such notice and each executed signature page thereto shall be automatically deemed to be released (and the New Administrative Agent shall have received represents and warrants that it has the favorable written opinion or opinions with respect consent of each New Lender to release such signature pages), the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the “Effective Date, addressed ” as defined in the Restated Credit Agreement shall be deemed to have occurred and each of the Administrative Agent New Lenders shall be obligated to fund its portion of the Term Loans on and as of such date in the Lenders amount set forth in the initial borrowing notice (net of any fees due and reasonably satisfactory to payable under the Administrative Agent;Fee Letter and in accordance with Section 4.01(b) of the Restated Credit Agreement); and
(iv) there shall be no other conditions to the occurrence of the Amendment Effective Date, the occurrence of the “Effective Date” under the Restated Credit Agreement and the obligations of the New Lenders to make the Loans under and as defined in the Restated Credit Agreement on such Effective Date (as defined therein). The New Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of notify the Borrower and each Guarantor certified by its secretary or assistant secretary as the New Lenders of the Amendment Effective Date, approving this Amendment, adopting the Loan Documents to and such notice shall be executed by such Person, conclusive and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings binding under the Restated Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Sequential Brands Group, Inc.)
Conditions to Effectiveness. This Second Amendment and the amendments set forth in Sections One, Two and Three shall become effective upon on the date on which (the “Second Amendment Effective Date”) when each of the following conditions shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipientsatisfied:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a1) the Borrower and (b) Lenders constituting the Required Lenders (including, in any event, each Lender providing a portion determined immediately prior to giving effect to the Second Amendment) and all of the Extended Facilities), together with all schedules Lenders directly and exhibits hereto adversely affected by this Second Amendment shall have signed a counterpart hereof (whether the same or different counterparts) and acknowledged shall have delivered (including by the Administrative Agent;
(iiway of facsimile or other electronic transmission) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect same to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower and Guarantors▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, in each case dated the Effective Date▇▇▇ ▇▇▇▇, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent▇▇ ▇▇▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇▇▇▇ (facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, email address: ▇▇▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇);
(iv2) (x) the assignment fee and any other costs and expenses of each Non-Consenting Term Lender (with respect to the assignment of its respective Initial Term Loans) shall have been paid in full, (y) the Initial Term Loans of Non-Consenting Term Lenders shall have been assigned to an assignee Lender in accordance with Section 3.07 of the Credit Agreement and (z) all accrued and unpaid interest on all Initial Term Loans of each Non-Consenting Term Lender shall have been paid in full by the assignee Lender to such Non-Consenting Lender in accordance with Section 3.07 of the Credit Agreement;
(3) the Administrative Agent shall have received (A) true and complete copies of resolutions of the boards board of directors or other appropriate governing body (or of the appropriate a duly authorized committee thereof) thereof of the Borrower approving and each Guarantor authorizing the execution, delivery and performance of this Second Amendment, and the performance of the Credit Agreement as amended by this Second Amendment, certified by its secretary or assistant secretary as of the Second Amendment Effective DateDate by a Responsible Officer, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such the Borrower as being in full force and effect without modification or Guarantoramendment and (B) a good standing certificate (or the equivalent thereof) for the Borrower from its jurisdiction of formation;
(vi4) at the Administrative Agent shall have received any changes to the Organizational Documents time of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Second Amendment);
, no Default or Event of Default (x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under each as defined in the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notesoccurred and be continuing; and
(xii5) the Administrative Agent representations and warranties set forth in Section 5 of this Second Amendment shall have received evidence that be true and correct in all fees payable by material respects on and as of the Borrower on or before the Second Amendment Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Date.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective upon on the first date on which when each of the following shall conditions precedent have been received or waived by satisfied (the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4), each in form and substance satisfactory to the applicable recipient:“Amendment Effective Date”):
(ia) the Administrative Agent shall have received (i) this Amendment, duly executed and delivered by the Borrower, 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 pro forma aggregate Amendment No. 5 Incremental Commitments shall have consented to the terms of this Amendment and the 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 authorized officer of (a) executed and delivered by the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative AgentGuarantor;
(iib) the Administrative Agent shall have received an acknowledgment legal opinions with respect to each Loan Party, dated as of Amendment Effective Date and consent (“Acknowledgment addressed to the Administrative Agent, the Lenders and Consent”)the Issuers, substantially in form and substance reasonably acceptable to the form of Exhibit B hereto, duly executed and delivered by each GuarantorAdministrative Agent;
(iiic) the Administrative Agent shall have received (i) a copy of a certificate from the favorable written opinion Secretary of State or opinions with respect other applicable office in the jurisdiction of incorporation or organization of each Loan Party 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, dated as of the Amendment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent, certifying (A) the names and true signatures of each officer of such Loan Party that has been authorized to execute and deliver the 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 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 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 (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 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 and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to Date, or such later date as may be agreed by the Borrower in its reasonable discretion, the reasonable and (B) Skaddendocumented fees and expenses of Weil, Arps, Slate, ▇Gotshal & ▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel ) 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) [Reserved];
(f) the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory 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);
(ivg) the Administrative Agent Borrower shall have received resolutions of delivered the boards of directors or other appropriate governing body (or of the appropriate committee thereofBorrowing Base Certificate required to be delivered pursuant to Section 6.9(a) of the Borrower 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 Guarantor certified by its secretary or assistant secretary of the representations and warranties set forth in Section 5 hereof shall be true and correct as of the Amendment Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(vi) the Administrative Agent no Default or Event of Default shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower occurred and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified be continuing as of the Amendment Effective Date as true and correct by its secretary or assistant secretary;Date; and
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixj) the Administrative Agent shall have received a Borrowing Notice in respect certificate from a Responsible Officer of the Extended Term Loans Borrower, certifying the conditions set forth in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(xSections 3(h) the Borrower shall and 3(i) have purchased, defeased, discharged or redeemed at least 80% been satisfied as of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Amendment Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Date.
Appears in 1 contract
Conditions to Effectiveness. This Amendment shall become effective as of the date hereof only upon the date on which each satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “Restatement Date”):
(a) This Amendment shall have been received duly executed by Holdings, each Existing Loan Party, the Existing Administrative Agent, the Existing Multicurrency Administrative Agent, the Required Lenders and the Consenting Lenders (whether pursuant to the execution and delivery of a Lender Consent or waived counterpart to this Amendment, as applicable) and the Joinders shall have been duly executed by each Additional Term A Lender and each Additional Revolving Credit Lender and, in each case, duly executed counterparts thereof shall have been delivered to the New Administrative Agent, such that upon such execution and delivery and the occurrence of the Restatement Date, the aggregate principal amount of the New Term A Loans shall be equal to $530,000,000 and the aggregate principal amount of the New Revolving Credit Commitments shall be equal to $250,000,000.
(b) The New Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the New Administrative Agent and its legal counsel:
(i) a Note executed by Holdings in its discretion favor of each New Lender that has requested a Note;
(except that ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Restatement Date, including those documents set forth on Schedule 1 hereto, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the New Administrative Agent to vest in the New Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Restatement Date, enforceable against all third parties in accordance with their terms;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the New Administrative Agent may not waive receipt reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties and (B) each local counsel listed on Schedule 2 hereto, in each case, dated as of the Restatement Date, in form and substance reasonably satisfactory to the New Administrative Agent and the New Lenders;
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Restatement Date after giving effect to the Restatement Date Transactions, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (c), (d), (e), (i), (iik), (iii), (iv), (x), (xil) and (xiim) of this Section 4III on the Restatement Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 of the Amended and Restated Credit Agreement; and
(ix) a counterpart of the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each in form and substance satisfactory to the applicable recipient:other U.S. Loan Party party thereto.
(i) the The New Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer from Holdings payment in immediately available funds of (ax) all accrued costs, fees and expenses (including reasonable fees, expenses and other charges of counsel) owing to the Borrower Existing Administrative Agent, the Existing Multicurrency Administrative Agent and the New Administrative Agent, in each case, pursuant to Section 11.04 of the Credit Agreement and Section 11.04 of the Amended and Restated Credit Agreement, as applicable, in connection with this Amendment and the Restatement Date Transactions and (by) all other compensation required to be paid on or prior to the Required Lenders (including, in any event, each Lender providing a portion of Restatement Date to the Extended Facilities), together with all schedules New Administrative Agent and exhibits hereto and acknowledged by its Affiliates pursuant to the Administrative Agent;Fee Letter.
(ii) Concurrently with the exchange of the Exchanged Term A Loans for New Term A Loans, the exchange of the Exchanged Revolving Credit Commitments for New Revolving Credit Commitments, the making of the Increased Term A Loans and Additional Term A Loans (if any) and the providing of Increased Revolving Credit Commitments and Additional Revolving Credit Commitments (if any), the Borrowers shall have paid to each Term B Lender, each Existing Term A Lender that is not an Exchanging Term A Lender (each such Existing Term A Lender, a “Non-Exchanging Term A Lender”) and each Existing Revolving Credit Lender that is not an Exchanging Revolving Credit Lender (each such Existing Revolving Credit Lender, a “Non-Exchanging Revolving Credit Lender”) all indemnities, cost reimbursements and other Obligations, if any, then due and owing to such Term B Lenders, Non-Exchanging Term A Lenders and Non-Exchanging Revolving Credit Lenders under the Loan Documents (prior to the effectiveness of this Amendment) to the extent Holdings has been notified thereof prior to the Restatement Date.
(d) Substantially concurrently with the Credit Extensions on the Restatement Date, (x) the Restatement Date Transactions shall have been consummated in full (including, for the avoidance of doubt, in accordance with Section 2.05 and Section 2.06 of the Credit Agreement, the prepayment in full of the aggregate principal amount of the Existing Term Loans and any Existing Revolving Credit Loans, in each case, outstanding as of the Restatement Date and the termination of all commitments to make extensions of credit under the Existing Revolving Credit Facilities) and (y) the New Administrative Agent shall have received an acknowledgment and consent received, in connection with any Lien securing, or Guarantee of, Foreign Obligations (“Acknowledgment and Consent”), substantially as defined in the Credit Agreement) pursuant to the Terminated Collateral Documents, such UCC and/or PPSA (as defined in the Credit Agreement) termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, as applicable, in each case, in proper form for recording as the New Administrative Agent shall have reasonably requested to release and terminate of Exhibit B heretorecord the Liens securing such Foreign Obligations or the release of Guarantees of such Foreign Obligations.
(e) After giving effect to consummation of the Restatement Date Transactions on the Restatement Date, duly executed Holdings and delivered by each Guarantor;
its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (i) the Loans and L/C Obligations, (ii) Qualified Preferred Stock, (iii) the SpinCo Notes and (iv) Indebtedness permitted by Section 7.03 of the Amended and Restated Credit Agreement.
(f) The New Administrative Agent shall have received the favorable written opinion or opinions with respect Annual Financial Statements and the Quarterly Financial Statements.
(g) At least thirty (30) days prior to the Amendment Restatement Date, the New Administrative Agent shall have received financial projections of Holdings and related Loan Documents executed its Subsidiaries through the fifth Fiscal Year following the Restatement Date, which will be prepared on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel a pro forma basis to give effect to the Borrower and Restatement Date Transactions.
(Bh) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the The New Administrative Agent and the Lenders and reasonably satisfactory to (including the Administrative Agent;
(ivNew Lenders) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body at least one (or of the appropriate committee thereof1) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent day prior to the Effective Date, certified as true Restatement Date all documentation and correct other information reasonably requested in writing by its secretary or assistant secretary;
them at least two (vii2) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent days prior to the Effective DateRestatement Date in order to allow the New Administrative Agent and the Lenders (including the New Lenders) to comply with applicable “know your customer” and anti-money laundering rules and regulations, certified as including the Act.
(i) All approvals, consents, exemptions, authorizations, or other actions by, or notices to, or filings with, any Governmental Authority or any other Person necessary or required for the consummation of the Effective Restatement Date as true and correct by its secretary or assistant secretary;Transactions shall have been received.
(viiij) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the The New Administrative Agent shall have received a Borrowing Notice in respect certificate from Holdings’ insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.06 of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Amended and Restated Credit Agreement is in full force and effect, together with endorsements naming the New Administrative Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.06 of the Amended and Restated Credit Agreement.
(k) The representations and warranties contained in Article 5 of the Amended and Restated Credit Agreement shall be true and correct in all material respects; provided that any such representations and warranties that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to this Amendment);any qualification therein) in all respects.
(xl) There shall not exist any action, suit, investigation, litigation, proceeding, hearing or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the Borrower reasonable opinion of the New Administrative Agent, singly or in the aggregate, materially impairs the Restatement Date Transactions, the financing thereof or any of the other transactions contemplated by the Loan Documents, or that could reasonably be expected to have a Material Adverse Effect.
(m) There has been no change, occurrence or development since December 31, 2012 that could reasonably be expected to have a Material Adverse Effect.
(n) With respect to the Loan Parties and their assets in existence as of the Restatement Date, the Loan Parties shall have purchasedtaken all actions required by the Collateral and Guaranty Requirements.
(o) No Default or Event of Default shall exist or be continuing after giving effect to the Restatement Date Transactions.
(p) Immediately prior to the Restatement Date, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand no Swing Line Loan (not resulting from borrowings under as defined in the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement be then outstanding. Notwithstanding anything herein to the extent contemplated by contrary, for purposes of determining compliance with the “conditions specified in this Section III, each Required Lender Commitments” section of the Term Sheet provided and Consenting Lender shall be deemed satisfied with each document and each other matter required to be reasonably satisfactory to such Required Lender or Consenting Lender unless, prior to the Lenders in connection with this AmendmentRestatement Date, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the New Administrative Agent shall have received evidence that all fees payable by the Borrower on receives notice from such Required Lender or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (Consenting Lender specifying such Required Lender’s or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)Consenting Lender’s objections.
Appears in 1 contract
Sources: Credit Agreement (ACCO BRANDS Corp)
Conditions to Effectiveness. This The effectiveness of the consent contained in Section 1 of this Amendment shall become effective and of the amendments contained in Section 2 of this Amendment are conditioned upon satisfaction of the following conditions precedent (the date on which each of all such conditions have been satisfied being referred to herein as the following "First Amendment Effective Date"):
(i) Each Properties Group Party shall have been received duly executed and delivered (1) an Assumption Agreement in the form attached hereto as Annex 4 with respect to the Guarantee and Security Agreement and with respect to the Mortgages encumbering the Real Estate transferred to it, (2) a counterpart signature page to the Subordinated Intercompany Note and (3) any other documentation required under, or waived requested by the Administrative Agent pursuant to, Section 6.10 of the Credit Agreement or otherwise, all in its discretion (except that form and substance reasonably satisfactory to the Administrative Agent may not waive receipt of clauses (any documentation delivered to the Administrative Agent pursuant to this clause (i), (iithe "Properties Group Loan Documents"), (iii), (iv), (x), (xiii) and (xii) the Governing Documents of this Section 4), each Properties Group Party shall be reasonably satisfactory in form and substance satisfactory to the applicable recipient:
(i) the Administrative Agent shall have received this Amendment, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially in the form of Exhibit B hereto, duly executed and delivered by each Guarantor;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and (iii) all aspects of the Lenders Colorado Acquisition and the Real Property Transfers, and all documentation related thereto, shall be reasonably satisfactory to the Administrative Agent;
(ivb) the Administrative Agent shall have received resolutions of signed written authorization from the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving requisite Lenders to execute this Amendment, adopting and shall have received counterparts of this Amendment signed by the Loan Documents to be Borrower, and counterparts of the consent of the Guarantors attached hereto as Annex 5 (the "Consent") executed by such Person, each of the Guarantors (as defined in the Guarantee and authorizing the execution and delivery thereofSecurity Agreement);
(vc) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf each of the Borrower representations and each Guarantor, certified by the secretary or assistant secretary warranties in Section 6 below shall be true and correct in all material respects on and as of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixd) the Administrative Agent shall have received a Borrowing Notice in respect modified ALTA-11 endorsement from the Title Insurance Company for each of its mortgagee's title insurance policies relating to the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment)Mortgages;
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xiie) the Administrative Agent shall have received evidence that payment in immediately available funds of all fees payable expenses incurred by the Borrower Administrative Agent (including, without limitation, legal fees) for which invoices have been presented, on or before the Amendment Effective Date Date;
(f) the Borrower shall have paid to each of the Lenders executing this Amendment by December 18,2002 an amendment fee equal to the product of 0.1% multiplied by the amount of each such Lender's Commitment;
(g) the Administrative AgentAgent shall have received the executed legal opinions of (i) each of Stokes, JPMorgan Bartholomew, Evans & Petree, Miles & Stockbridge and Kaye Scholer LLP counsel to t▇▇ ▇▇rro▇▇▇ ▇▇d its Subsidiaries regardi▇▇ ▇▇▇▇▇▇▇▇▇ matters (including, without limitation, the Lenders (or their affiliates) in connection with enforceability of this Amendment, have been paid in fullthe Credit Agreement, including as amended, and the fees Properties Group Loan Documents against all parties thereto, and expenses of no conflict with law or material agreements) and (ii) such local counsel to as the Administrative Agent to shall request regarding the extent invoiced at least one continued enforceability of the Mortgages and other customary matters;
(1h) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative AgentAgent shall have received such other documents, JPMorgan instruments, certificates, opinions and the Borrower (the “Engagement Letter”)approvals as it may reasonably request.
Appears in 1 contract
Conditions to Effectiveness. This The amendments to the Credit Agreement set forth in this Fourth Amendment shall become effective upon on the date (the “Fourth Amendment Effective Date”) on which each of the following conditions set forth in this Section 4 shall have been received or waived by the Administrative Agent in its discretion satisfied (except it being understood that the Administrative Agent may not waive receipt of conditions in clauses (id), (iie), (iii), (iv), (x), (xif) and (xiig) may be satisfied concurrently with the occurrence of this Section 4), each in form and substance satisfactory to the applicable recipient:Fourth Amendment Effective Date):
(ia) the Administrative Agent shall have received counterparts of this Fourth Amendment, duly executed and delivered on behalf of (i) the Borrower, (ii) Holdco 4, Holdco 5 and Holdco 6, (iii) the New RCF Holdco Guarantors and (iv) Lenders constituting the Required Lenders;
(b) as of the Fourth 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 Fourth Amendment;
(c) each of the representations and warranties of the Borrower and Holdco 4, Holdco 5 and Holdco 6 set forth in Section 3 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) on the Fourth Amendment Effective Date, except to the extent any such representation or warranty is stated to relate to an earlier date in which case such representation and warranty 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) on and as of such earlier date;
(d) each New RCF Holdco Guarantor shall have delivered to the Administrative Agent (i) a duly executed Guaranty Supplement to the Subsidiary Guaranty Agreement (such agreement, the “New RCF Holdco Guaranty Supplement”), (ii) certificates with respect to resolutions, charters, by-laws, or equivalent organizational documents, incumbency and signature and certified copies of all other relevant documents evidencing any corporate or equivalent action and governmental approvals necessary for such New RCF Holdco Guarantor to enter into the New RCF Holdco Guaranty Supplement, (iii) any necessary Intercompany Subordination Agreement or necessary joinder documentation by such New RCF Holdco Guarantor in connection with an Intercompany Subordination Agreement, (iv) certificates of existence and good standing or the equivalent, if applicable, from such New RCF Holdco Guarantor’s jurisdiction of organization or incorporation, (v) evidence of appointment by such New RCF Holdco Guarantor of a domestic process agent, (vi) documentation and other information that is required by regulatory authorities -3- under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and (vii) such other documentation and conditions as are reasonably requested by the Administrative Agent to the extent similar in scope and substance as delivered by Holdco 4, Holdco 5 and Holdco 6 pursuant to Sections 4.1(a) and (e) of the Credit Agreement on the Effective Date;
(e) each of Holdco 4, Holdco 5 and Holdco 6 shall have duly authorized, executed and delivered by a duly authorized officer of (a) the Borrower and (b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) to the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”)a Share Pledge Agreement, substantially in the form of Exhibit B heretothe Midco Share Pledge Agreements, duly executed and delivered by pursuant to which all of the Equity Interests of each Guarantorof the New RCF Holdco Guarantors shall be pledged to the Collateral Agent to secure the Secured Obligations;
(iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and the transactions contemplated thereby of (A) in-house legal counsel to the Borrower and (B) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Borrower and Guarantors, in each case dated the Effective Date, addressed to the Administrative Agent and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Guarantor;
(vi) the Administrative Agent shall have received any changes to the Organizational Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretary;
(vii) the Administrative Agent shall have received any changes to the Operating Documents of the Borrower and each Guarantor since the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ixf) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement favorable written opinion (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes; and
(xii) the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date addressed to the Administrative Agent, JPMorgan the Collateral Agent, the Lenders and the Lenders Issuing Banks and dated as of the Fourth Amendment Effective Date) of (or their affiliatesi) White & Case LLP, New York counsel for the Borrower, Holdco 4, Holdco 5, Holdco 6, and the New RCF Holdco Guarantors, and (ii) ▇▇▇▇▇ ▇▇▇▇▇, Cayman Islands counsel for the Borrower Holdco 4, Holdco 5, Holdco 6, and the New RCF Holdco Guarantors, in connection each case covering such matters with respect to the Borrower, Holdco 4, Holdco 5, Holdco 6, the New RCF Holdco Guarantors and this AmendmentFourth Amendment and the other Credit Documents coming into effect on the Fourth Amendment Effective Date, have been paid in fulland the transactions contemplated by such Credit Documents, including the fees and expenses of counsel to as the Administrative Agent shall reasonably request; and
(g) to the extent required to be paid by the Borrower pursuant to Section 10.13 of the Credit Agreement (and not otherwise waived by the Administrative Agent), the Administrative Agent (or its counsel) shall have received, to the extent invoiced at least one (1) no later than two Business Day Days prior to or on the Fourth Amendment Effective Date (which may include amounts constituting Date, payment of all reasonable estimates of such fees and documented out-of-pocket expenses incurred or to be incurred in connection with the transaction; provided preparation, negotiation and execution of this Fourth Amendment. For purposes of determining compliance with the conditions specified in this Section 4, the Administrative Agent and each Lender party hereto, as applicable, that no such estimate has signed this Fourth Amendment shall thereafter preclude the final settling of accounts as be deemed to such fees and expenses) have consented to, approved or accepted or be satisfied with, each document or other matter required under this Section 4, in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among be consented to or approved by or to be acceptable or satisfactory to the Administrative AgentAgent or each Lender party hereto, JPMorgan and as applicable. Upon the satisfaction of the conditions set forth in this Section 4, the Administrative Agent shall promptly provide written notice to the Borrower (of the “Engagement Letter”)effectiveness of this Fourth Amendment, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Transocean Ltd.)
Conditions to Effectiveness. This Amendment shall become be deemed to be effective as of the date first written above (the "Effective Date") upon the date on which each Agent's receipt of the following shall have been received or waived by the Administrative Agent in its discretion (except that the Administrative Agent may not waive receipt of clauses (i), (ii), (iii), (iv), (x), (xi) and (xii) of this Section 4)following, each in form and substance satisfactory to the applicable recipientAgent:
(ia) the Administrative Agent shall have received facsimile copies of original counterparts (to be followed promptly by original counterparts) or original counterparts of this Amendment, duly executed by each of the Borrower, the Guarantor, the Subsidiary Guarantor, the Agent and delivered by a duly authorized officer of (a) the Borrower and Banks;
(b) the Required Lenders (including, in any event, each Lender providing a portion of the Extended Facilities), together with all schedules and exhibits hereto and acknowledged by the Administrative Agent;
(ii) the Administrative Agent shall have received an acknowledgment and consent (“Acknowledgment and Consent”), substantially duly executed promissory note in the form of Exhibit EXHIBIT B hereto, duly executed and delivered by issued in favor of each GuarantorBank in the respective original principal amounts set forth on SCHEDULE 1 hereto;
(c) a duly executed Secretary's certificate of the Assistant Secretary of each of the Borrower, the Guarantor and the Subsidiary Guarantor certifying (and where applicable, attaching copies of) the Borrower's, the Guarantor's and the Subsidiary Guarantor's (i) charter document; (ii) by-laws; (iii) the Administrative Agent shall have received the favorable written opinion or opinions with respect to the Amendment and related Loan Documents executed on the Effective Date and resolutions of its Board of Directors authorizing the transactions contemplated thereby of (A) in-house legal counsel to the Borrower hereby; and (Biv) Skaddenthe incumbency of officers entitled to sign this Amendment on behalf of the Borrower, Arpsthe Guarantor and the Subsidiary Guarantor, Slate, ▇as the case may be;
(d) the legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇, special counsel to the Borrower and GuarantorsBorrower, in each case dated the Effective Date, addressed to the Administrative Agent Guarantor and the Lenders and reasonably satisfactory to the Administrative Agent;
(iv) the Administrative Agent shall have received resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower and each Guarantor certified by its secretary or assistant secretary as of the Effective Date, approving this Amendment, adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(v) the Administrative Agent shall have received specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Borrower and each Guarantor, certified by the secretary or assistant secretary of such Borrower or Subsidiary Guarantor;
(vie) the Administrative Agent shall have received any changes to the Organizational Documents such corporate good standing certificates of each of the Borrower Borrower, the Guarantor and each the Subsidiary Guarantor since as the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as true and correct by its secretary or assistant secretarymay require;
(viif) the Administrative Agent shall have received any changes payment in cash to the Operating Documents Agent, for the PRO RATA accounts of the Borrower and each Guarantor since Banks, of an amendment fee in the First Amendment Effective Date or since last provided to the Administrative Agent prior to the Effective Date, certified as amount of the Effective Date as true and correct by its secretary or assistant secretary;
(viii) the Administrative Agent shall have received certificates issued as of a recent date by the Secretaries of State of the respective jurisdictions of formation of the Borrower and each Guarantor as to the due existence and good standing of such Person;
(ix) the Administrative Agent shall have received a Borrowing Notice in respect of the Extended Term Loans in each case requested to be made on the Effective Date in accordance with the Credit Agreement (after giving effect to this Amendment);
(x) the Borrower shall have purchased, defeased, discharged or redeemed at least 80% of the aggregate principal amount outstanding of the Year 2006 Senior Notes using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes;
(xi) the Borrower shall have repaid the Term Loans under the Credit Agreement to the extent contemplated by the “Lender Commitments” section of the Term Sheet provided to the Lenders in connection with this Amendment, using cash on hand (not resulting from borrowings under the Credit Agreement) or proceeds from the Year 2010 Senior Notes$60,000; and
(xiig) such other documents, agreements and items as the Administrative Agent shall have received evidence that all fees payable by the Borrower on or before the Effective Date to the Administrative Agent, JPMorgan and the Lenders (or their affiliates) in connection with this Amendment, have been paid in full, including the fees and expenses of counsel to the Administrative Agent to the extent invoiced at least one (1) Business Day prior to or on the Effective Date (which may include amounts constituting reasonable estimates of such fees and expenses incurred or to be incurred in connection with the transaction; provided that no such estimate shall thereafter preclude the final settling of accounts as to such fees and expenses) in each case to the extent agreed upon in the Engagement Letter, dated March 31, 2010, among the Administrative Agent, JPMorgan and the Borrower (the “Engagement Letter”)require.
Appears in 1 contract
Sources: Revolving Credit Agreement (Charlotte Russe Holding Inc)